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

[Jean Louis]

>From my personal business experience and usage of trademarks, I know
that using those trademarks in package definitions may cause troubles in
future, to the whole free software distribution.

Purpose of this description is to avoid such future collisions with the
trademark owners.

I suggest that FSF asks attorneys to verify these claims.

First everybody shall understand what is trademark infringement:

Citing from: https://en.wikipedia.org/wiki/Trademark_infringement

"Trademark infringement is a violation of the exclusive rights attached
to a trademark without the authorization of the trademark owner or any
licensees (provided that such authorization was within the scope of the
licence). Infringement may occur when one party, the "infringer", uses a
trademark which is identical or confusingly similar to a trademark owned
by another party, in relation to products or services which are
identical or similar to the products or services which the registration
covers. An owner of a trademark may commence civil legal proceedings
against a party which infringes its registered trademark. In the United
States, the Trademark Counterfeiting Act of 1984 criminalized the
intentional trade in counterfeit goods and services."

In short, if one is using MAME for cookies sales or restaurant, that is
fine, because it is OTHER class of services or goods. But in free
software distributions the word is used in the same class of goods and
services. 

And here is the short analysis of trademarks that I have found in the
GuixSD packages, that clearly fall in the above definition of an
infringement case. First let me explain the MAME® trademark, if that
package is to be included in any of free software distributions, but it
also applies to those others, not FSF endorsed distributions:

Trademark MAME® is registered by with the United States and Patent
Office: http://www.uspto.gov/

Trademark search:
http://www.uspto.gov/trademarks-application-process/search-trademark-database

Trademark MAME® is registered for following goods and services, under
the trademark registration number 3124870:

"Downloadable computer software that enables the emulation of arcade
games and their associated hardware, allowing them to run on a general
purpose computer operating system" and belongs to Salmoria, Nicola,
developer of MAME® emulator.

He did not license the trademark in such a manner that it could be
included in the free software distribution. Thus it is automatically
protected and legally endanger the GuixSD distribution:

- I cannot advertise GuixSD distribution and say it contains "MAME®
  emulator" because in that manner I am infringing on the MAME®
  trademark, the GPL freedom is compromised, 

- I cannot sell the distribution, neither MAME® software, which means
  that GPL freedom is in compromised,

- MAME® trademark owner or his successors, may in future ask for damages
  for the usage of MAME® trademark.

Thus the usage of trademark shall be completely removed in my opinion
from software. Including from source code of MAME® emulator, if such
would be included in future in any free software distribution.

is the trademark MAME® which does would render the whole distribution
not distributable. I still wish that attorney confirms that from legal
side.

Trademark NINTENDO®:

There is other software in GuixSD, that uses trademark NINTENDO®, that
is searchable on: http://www.gnu.org/software/guix/packages/

Software: Nintendo DS emulator, package: desmume 0.9.11
Software: Nintendo 64 emulator core library, package: mupen64plus-core 2.5
Software: Nintendo Entertainment System (NES/Famicom) emulator, package
          nestopia-ue 1.46.2

The trademark NINTENDO® and NINTENDO DS® is in multiple variations registered 
with the
USPTO, see link above to search and verify it.

The emulators and library, they are all in the **same class of goods and
services** just as class of goods and services that NINTENDO trademarks
are registered for.

It does not matter if one uses NINTENDO versus NINTENDO DS, because the
mark is confusingly similar to the registered trademark.

By considering the above last 2 sentences, and definition of the
infringement, the usage of those trademarks directly compromises all the
free distribution.

Possible consequences:

- Nintendo can at all times, request that websites using unauthorized
  trademarks are shut down,

- Nintendo company may ask for damages in future, thus compromising free
  software distributions and responsible persons,

- bad image and negative publicity

NINTENDO® trademark varies from MAME® trademark because it is "well
known" trademark. That is special terminology, and that means, that one
cannot even call his restaurant NINTENDO even though the restaurant is
not in the same class of goods and services.

In comparison, it is same with Coca-Cola® trademark, one could not just
open restaurant named "Coca-Cola", not even sell computers named
"Coca-Cola" because it is well known trademark and one would infringe
even in that case with Coca-Cola drinks in the class of drinks.

One can review Nintendo websites, to get a feeling how much they do care
of their trademarks and what consequences they draw on such:

https://ap.nintendo.com/faq/
http://www.nintendo.com/corp/copyright.jsp
http://www.nintendo.com.au/legal#Trademarks

Further, one shall review the websites, where Nintendo company has
already went into legal trouble with infringing parties both in regards
to trademarks, and in regards to patents.

http://nintendoeverything.com/nintendo-nyko-settle-patent-and-trademark-infringement-lawsuit/
http://www.androidpolice.com/2011/03/30/psx4droid-emulator-gets-pulled-from-the-market-probably-for-trademark-infringement/
https://www.gnu.org/philosophy/proprietary-sabotage.html

And there are also issues with patenting:
http://www.palminfocenter.com/news/6944/eff-targets-nintendo-emulator-patent/

The trademarks are often registered in many countries. And while laws in
one countries may not be that strict, in the other country that may be
the case.

Thus usage of NINTENDO®, MAME® and other trademarks, without clear
licensing that is compatible with GPL license in question is
compromising all the distribution and further copying, selling,
advertising, multiple websites, consequences are wide.

Considering all of the above, I propose that NINTENDO® trademark is removed from
ALL free software distribution as such.

Previous packages shall be replaced with removal of such trademarks. And
websites shall be updated once trademarks are removed.

Please verify my statements here with your associated attorney, it can
be in any country.

Jean Louis