This is not some sort of abondonware.

That's what you're saying?

Owning a game? The very idea.

The person to whom you were responding just asked what sales Nintendo might plausibly be losing. I'm trying to understand if you're answering that question or just making a different point (ie, that even if they don't lose sales or suffer any loss at all, they'll still do this because reasons).

The Rubicon has been crossed, it's piracy because there's a theoretical possibility that the rights holder isn't making as much money as the theoretical maximum.

This "you have to defend your IP" nonsense very quickly veers into propaganda in my estimation. Stated better here: https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...

There is no realistic timeline in which the outcome you are suggesting comes to pass.

That's not at all how genericisation works it's really quite the opposite of abandonment.

The way one abandons a registered trademark, assuming we're talking about the registered rights [I only know about the un-registered rights in the UK, not sure what the scope of unregistered marks is in USA], is by not paying your renewal fees.

What it may do is reduce your damages claim to actual damages from the point when you notify the infringer.

Regardless, even if it were the case that one was required to notify all users there is always the option to offer a limited license for use of marks, so the layman idea of "you have to prosecute or you'll lose your mark" would still be wrong under such a regime.

Whilst the law is not logical, if you think about it allowing the law to work in the way claimed would actually provide a route to easily invalidate any [registered] trademark. One would simply use the mark for trade in a hidden way that the owner could not discover, the failure to notify of the infringement would then -- if the common wisdom held -- invalidate the mark and cause it to be abandoned. Millions of people would be falling over themselves to register Microsoft all the time because they were selling a product using that name and MS never notified them; it would be an entirely unworkable system.

* Capcom for example allows fan games as long as you don't profit off them. There are a couple of Megaman games for example.

* Konami allowed the fan game "Castlevania: The Lecarde Chronicles 2" as long as they did not profit from the game.

* Valve allowed the HL fan game Prospect - https://store.steampowered.com/app/399120/Prospekt/

And there are other examples out there. Nintendo could perfectly allow it under certain conditions. Did Sega not work for Sonic Mania with somebody who made sonic fan games for example?

You can't be serious. Are you saying that, sitting on a civil jury hearing a lawsuit at some future date, you'd conclude that Mario - one of the most recognizable fictional characters in the world - is no longer a trademark of Nintendo because a third party made a C64 clone of the game?

I don't understand how you view this as the likely outcome. Nothing even close to this has ever happened ever.

> Quite simply, the view that a trademark holder must trawl the internet and respond to every unauthorized use (or even every infringing use) is a myth. It’s great for lawyers, but irritating and expensive for everyone else. And when done clumsily or maliciously, it chills free expression.

https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...

I’m not arguing the truth of the claim, but consider: if a lawyer advises you to defend your trademarks and that you could lose them if you don’t, would you risk it? There’s no obvious upside to being nice in cases like this.

Sure there is. Good PR. Your lawyer will advise you to do all sorts of things that are PR suicide to avoid nearly non-existent legal risks if nothing more than to cover themselves.

One of the most important jobs an executive has is to rein in the lawyers to keep them from publicly embarrassing the company.

No, but if hundreds or thousands of third parties are left free to brand their games "Super Mario" it may have an adverse effect on the claim to the mark, which when someone uses the mark to compete with Nintendo in an actually substantial way may be used to their defense.

Famous last words...

Like, walk me through step-by-step how Mario becomes Escalator.

Similarly Eat Right Foods lost a similar case for their mark “Eat Right” to Whole Foods for their delay in enforcing the mark.

The mark holder doesn’t have to take action in every infringement as you say, of course...but if it can be proven the mark holder knew or should have known that’s kind of the threshold legal issue.

In both of those cases (and every other similar case), there was genuine confusion between marks. Whom in this case is Mario going to be confused for?

I just can't imagine anybody sitting on a jury and saying, "yeah, I"m going to find in favor of the would-be infringer here because Nintendo didn't go after that C64 port that one time in 2019." I mean, seriously?!

We're talking about Nintendo losing the trademark over Mario - a household name and likeness. Nobody is going to be confused about Mario, and nobody is going to start using the word "Mario" to generically mean a platform jumping character.

>yeah, I"m going to find in favor of the would-be infringer here because Nintendo didn't go after that C64 port that one time in 2019."

That’s not how Law works. Your mixing confusion in the market place and laches...the jury doesn’t pick and decide what laws apply.

If I saw a T-shirt with Mario on it for example, or a Mario game...I would surely think the owners of the Mario marked either created or licensed the work...that’s the definition of confusion anyway, but that’s not the issue being discussed.

Effectively, you are right. But technically, they can. Via jury nullification. But if you know about this, then you typically get immediately weeded out during the selection process.

You picked two examples where confusion over the nature of the mark was the turning point in the case. I ask again: whom is Mario being confused for here?

> That’s not how Law works.

This is precisely how civil law works. Precisely. The fact that you cherry-picked a case that ended in summary judgment does not change this.

How many trademark cases have you litigated?

How many cases have you won/lost on summary judgment? SJ is taking all facts in a light most favorable to the nonmoving party they still lose as a matter of law...a jury wasn’t even needed to make a finding of fact, because the prevailing parties were entitled to judgement as a matter of law. It’s pretty damn persuasive.

Who is Mario being confused for? Again not how the law works at all...no one is confusing Mario, the infringing Mario is being confused for a legit Mario, that would be a part of the infringement claim. Again if I start making Mario T-shirt’s the public would be confused about the origin and think it’s legit product...why wouldn’t they? But it’s not it’s an infringing product trading off the good will of the mark, you bet any infringers would defend a trademark claim by showing the Mario trademark owner has abondoned the mark, and present evidence of the owners knowing people copied the Mario games/marks and they didn’t take any action to enforce it.

They could have supported this as a homage to the franchise, supported their fans creativity, and gotten lots of free publicity to boot.

A random lawyer might not consider that, but if anyone thought this through? I don't think there's any measurable impact on any Nintendo business, at all. Maybe, _maybe_ the inverse: Support a fan project like this and the middle-aged C64 fan base - even those not owning one anymore - might be even more inclined to buy Nintendo products?

This is more to say that a defense of the authors of this port may not want to make such an argument.

Needless to say, virtually any desktop system of any recent vintage can already run pretty much the entirety of the NES and SNES library; that ship has not only already sailed, but has circumnavigated the globe.

A C64 port of a Mario game is absolutely at most a blip in the increase in portability. If one's goal is "I want to play Super Mario Brothers on my PC", then that player's probably gonna reach for RetroArch and one of the various NES-emulating libretro cores instead of reaching specifically for a C64 emulator to play a presumably-buggier-and-uglier port of it to an entirely different system.

And there are numerous SMB roms floating around on the Internet. That ship has sailed, circumnavigated, and sailed and circumnavigated again while crewed by the descendants of the original crew - that is, a C64 port does not make that situation any "worse" for Nintendo.

But free NES ROMs download websites or equivalent are illegal.

Here, the combination of a port+the existence of an emulator provides a way to play the game without honoring the copyright (in fact, even the limited pool of actual C64 is an issue), even if it's a bit convoluted and a lot of work to play one game.

As much as this port is a cool achievement, and probably actually helps cultivating the nostalgia around the game, Nintendo has every right to issue this DMCA.

That being said, the usual copyright duration seems a little excessive for old computer programs and games.

If anything, it shows fans are pasionate about the franchise and it's generated a lot of buzz around it in the last few days.