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

[Jean Louis]

Hello Stephen,

On Sat, Apr 02, 2016 at 02:49:07AM -0400, Stephen Clement wrote:
> 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.

I am not sure for the basis or foundation of your opinion. Is it just
personal or you have argument that is based on some legal practice.

There are numerous definitions of the word "commercial", just look it up
in the dictionary. I will assume you think "connected to sales".

However, that term "commercial" is not the deciding factor for the
courts. Further, it would be very questionable in courts, if asking for
donations does not constitute "commercial usage".

When software is published as GPL it is "commercial", as if you wish to
give freedom to others, you do not forbid them selling the software. GPL
software has been sold over and over and some companies made millions on
that. 

So free software does not forbid anyone selling the software. In that
regard software is commercial and may be considered such by the court.

There are various methods how trademark owner may attack the party, it
need not be based on "commercial" factor at all.

There is term such as "dillution of trademark". Read here:
https://en.wikipedia.org/wiki/Trademark_dilution

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

Yes, that is good example. But example cannot be generalized.

I have provided arguments in order to avoid such court processes. A
court process is very particular to the case in question. With just
slight differences, there can be totally different result, and judgement
could be different.

It is impossible to simply say "such efforts have failed", you should
not use that in plural and generalize. One particular effort has failed
in that particular case. Court proceedings may be very costly.

My arguments are for the helpful attorneys who may give the
clarification on what is best to do.

I don't think that my arguments on usage of trademarks in free software
distributions shall be made by voting, or based on opinions, it shall be
rather legally verified. 

> 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

You should be very very precise when making such statements, such as I
was. If you mention SNES, you should look up the SNES trademark, does it
exist?

By doing 4 seconds research on the USPTO website, I did not find that
"SNES" exists as trademark. So you cannot compare SNES to NINTENDO DS or
NINTENDO.

I could not also find any reference to N64 being a trademark.

And I have not mentioned anything in regards to SNES mark or N64 mark. I
was very particular and precise.

> The first relates to trademark infringement for a physical, commercial good
> which very much did cause confusion.

GPL software IS commercial.

Software designed for sale is commercial software. It does not matter if
you don't get the money for it, by giving it to your friend free of
charge. If it is designed to be commercial, it is commercial. Further,
many companies produce free software as part of their commercial
activities. 

And I do not look onto such software from the first step, of
distributing it from a website, free of charge. The distribution and
software inside shall be free for companies to sell it, to use it
commercial, in the second step, or tenth step.

It is not only matter if GuixSD or other free software distribution is
"non-commercial", but what about the users who maybe wish to sell the
software? They become unable legally in that case. They should not be
prevented selling software as such in commercial manner.

> 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.

It seems to be that you would simply use trademarks as you wish, and
wait for the worst to happen?

I am rather for the legal review of my arguments.

Jean Louis