4 ms·

It's probably related to trademarks: you lose a trademark if you don't enforce it. If they let this go, chances are they would lose the Super Mario trademark, w

It's probably related to trademarks: you lose a trademark if you don't enforce it. If they let this go, chances are they would lose the Super Mario trademark, which would hurt them.

qaucnnnsicuwbr 8y ago
I'm no copyright lawyer but couldn't they have issued a licence to use the trademark to the author if this was the case? They could have supported this as a homage to the franchise, supported their fans creativity, and gotten lots of free publicity to boot.
- andai 8y ago
  Here we see not the absence of a way, but of a will.
estomagordo 8y ago
That does not explain why less draconic companies still get to keep their trademarks.
glenndebacker 8y ago
I hear that a lot but it's certainly not that black and white. * 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/ 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?
jMyles 8y ago
> If they let this go, chances are they would lose the Super Mario trademark 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-require-companies-tirelessly-censor-internet https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...
- carlosperate 8y ago
  > Nothing even close to this has ever happened ever. Famous last words...
  - jMyles 8y ago
    But seriously for a second: can you describe how you actually envision this (or anything vaguely like this) ending in a civil verdict concluding abandonment of this (very well known) trademark? Like, walk me through step-by-step how Mario becomes Escalator.
    - will_brown 8y ago
      Fitbit was sued by Fitbug and while likely would have had a strong claim of infringement the court found Fitbug lost its rights to enforce the mark against Fitbit because the delay in eneforcement. 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.
      - jMyles 8y ago
        The fact that you are having to reach a thousand miles just shows how ludicrous this is. 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.
        will_brown 8y ago
pbhjpbhj 8y ago
It's not true. If it were then any company could easily give a no-cost license, take-down is in no way a requirement.

It's probably related to trademarks: you lose a trademark if you don't enforce it. If they let this go, chances are they would lose the Super Mario trademark, which would hurt them.

qaucnnnsicuwbr 8y ago

I'm no copyright lawyer but couldn't they have issued a licence to use the trademark to the author if this was the case? They could have supported this as a homage to the franchise, supported their fans creativity, and gotten lots of free publicity to boot.

andai 8y ago
Here we see not the absence of a way, but of a will.

estomagordo 8y ago

That does not explain why less draconic companies still get to keep their trademarks.

glenndebacker 8y ago

I hear that a lot but it's certainly not that black and white. * 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/ 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?

jMyles 8y ago

> If they let this go, chances are they would lose the Super Mario trademark 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-require-companies-tirelessly-censor-internet https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...

carlosperate 8y ago
> Nothing even close to this has ever happened ever. Famous last words...
- jMyles 8y ago
  But seriously for a second: can you describe how you actually envision this (or anything vaguely like this) ending in a civil verdict concluding abandonment of this (very well known) trademark? Like, walk me through step-by-step how Mario becomes Escalator.
  - will_brown 8y ago
    Fitbit was sued by Fitbug and while likely would have had a strong claim of infringement the court found Fitbug lost its rights to enforce the mark against Fitbit because the delay in eneforcement. 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.
    - jMyles 8y ago
      The fact that you are having to reach a thousand miles just shows how ludicrous this is. 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.
      - will_brown 8y ago

pbhjpbhj 8y ago

It's not true. If it were then any company could easily give a no-cost license, take-down is in no way a requirement.