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Re: [GNU-linux-libre] Usage of NINTENDO, MAME and other trademarks


From: Stephen Clement
Subject: Re: [GNU-linux-libre] Usage of NINTENDO, MAME and other trademarks
Date: Sat, 2 Apr 2016 02:49:07 -0400
User-agent: Mozilla/5.0 (X11; Linux x86_64; rv:38.0) Gecko/20100101 Thunderbird/38.7.0

On 04/02/2016 01:58 AM, Jean Louis wrote:
Hello Julian,

On Fri, Apr 01, 2016 at 08:14:12PM -0400, Julian Marchant wrote:
On 04/01/2016 04:13 PM, Jean Louis wrote:
The question is: does it harm the market?
No, it isn't. I suspect you are making a generalization because you've
lumped together copyright law and trademark law, which have completely
different purposes.
I have mentioned what is Nintendo going to claim, and have given links
how they have done it against other emulator as example of their past
history to use trademarks. Did you read the links?

Did you read: "our policy is to decline use of our trademarks and
copyright"?

I have given arguments, and not "absurd fear to mention Nintendo".

If you wish to give arguments on trademark usage, you should provide
examples that are aligned with the allowed usage. Personal opinion,
unless you are attorney or have asked the attorney is just that,
personal.

When saying in package definition: "Nintendo 64 Emulator", that is
infringement.

When saying "emulator for games developed for the hardware Nintendo 64"
could pass, but one would need to consult the attorney.

It is not about "mentioning Nintendo", it is about the usage of the
mark. There is improper usage in package definitions.

The question of interest for trademarks has nothing to do with "harm" of
"the market". The purpose of trademarks is to prevent confusion of
consumers. So the question is whether or not such confusion is
reasonably likely to arise.
You can say that it has nothing to do with "harming the market". But
that is not something to discuss between me and you, or on the
list. That is the claim that companies like Nintendo are doing in the
court processes.

I have written my arguments in the view point of preventing such court
processes. As of right now, tradmemarks are used in such manner to
endanger the distributions.

Jean Louis



Hello Jean,

I think that claims of danger from Nintendo are rather overstated. I'm not aware of any free software emulators, or repositories hosting them, being on the receiving end of legal threats from Nintendo. To my knowledge, Nintendo, Sony, etc. have limited their attempts to enforce their trademarks to those making commercial emulators.

Furthermore, at least in the United States, such efforts have failed:
https://en.wikipedia.org/wiki/Sony_Computer_Entertainment,_Inc._v._Connectix_Corp.

Today, emulators using Nintendo system names continue to be available in large markets (i.e. Google Play), despite having 'SNES' in their title, such as:
https://play.google.com/store/apps/details?id=com.explusalpha.Snes9xPlus&hl=en
Or, others sold commercially (and under a proprietary license) describing themselves as an "N64 emulator":
https://play.google.com/store/apps/details?id=paulscode.android.mupen64plus&hl=en

Regarding your previous claims, I read the links you cited.

The first relates to trademark infringement for a physical, commercial good which very much did cause confusion. The second link has pure speculation from the author that trademark infringement is the reason behind the takedown, and no other articles I could find confirmed that it was the underlying reason.
The last has no relation at all to trademark law.

Realistically, Nintendo has no legal basis to enforce their trademarks and if they show no signs of enforcing it against commercial users, it is extremely unlikely that noncommercial distributors would be targeted.

Regards,
Stephen



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