So, just to complete your thought here: the way that you are answering the question "How could a C64 port of a NES game released more than 30 years ago could threaten any sale of anything?" is to suggest that people are going to buy a C64 to play Super Mario Bros instead of a Switch?

That's what you're saying?

Yes, and your old NES cartridge is infringing because obviously you have to repurchase it every generation. You can't keep enjoying these games without the rights holder getting paid, and don't even think about trying to sell it.

Owning a game? The very idea.

Maybe I still have a C64 at home and don't want to switch to a Switch?

I’m saying of course they are not going to approve of pirating of their active software, regardless of the channel.

Wait, pirating? I thought the issue here was supposed trademark infringement?

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).

Well pirating is a high seas thing. Applying it to IP is basically rights holder propaganda. If you don't take issue with that usage it isn't a massive leap to apply it to trademark infringement.

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.

That is one argument that is often made, however the real issue is that if Nintendo doesn't do this takedown, does not protect its intellectual property, they may lose it entirely - to retain a copyright you have to actively defend it.

Please. What's the actual scenario you are envisioning here? Do you really, honestly believe that a jury is going to conclude that Nintendo is no longer the rightful owner of a trademark on Mario? Because they didn't take legal action against a C64 port? And what copyright are you talking about anyway? I thought this was a discussion about the Mario trademark?

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.

I think you're thinking of trademark defense, not copyright.

It's also false for TM.

Depending on who you ask, failure to police your trademark may either weaken it or outright serve as evidence of abandonment by genericization. Either way, it may lessen your claim to the mark.

>evidence of abandonment by genericization //

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.