[Reiska]

It's the major media coverage that's the problem, yeah.  Pokemon Zeta and Omicron, similarly Pokemon fangames, never got covered in articles on major gaming sites, and have received no takedown.  The same goes for Zelda Classic.

Zelda Classic, in particular, has been around for 17 years.  There are almost certainly people working at Nintendo who were small children when it was released.  I suspect quite strongly that the odds that no one at Nintendo knows of its existence are zero (in fact, given that I would expect that most new blood at Nintendo are likely people who grew up as Nintendo fans, I'd expect the proportion of Nintendo employees who have heard of Zelda Classic to be higher than that of the general population).  I similarly suspect quite strongly that, practically speaking, Nintendo's legal department has to know it exists.  Taking these two suppositions into account, there's only one plausible explanation for why it hasn't been taken down: because Nintendo would, as a company, prefer not to aggressively deter fandom projects, and so long as they don't get front-page coverage from mass gaming media, they can plausibly claim ignorance.  When Kotaku blasts a fan project out on the front page, though, they can't claim ignorance, and they have to act to protect their trademark, especially if Kotaku reaches out to them for formal comment (as is common and customary). 

[SCD]

That is one of main reasons why the recent fan projects got killed, because I did see articles on mainstream sites like Yahoo!, Gamespot, IGN, Polygon and Destructoid talking about AM2R and Pokemon Uranium. That alone would get Nintendo's attention.

[KaioShin]

And thanks to that coverage those projects got several million hits instead of a few ten thousand. The works are out there and can still be easily found if one looks for them. Do you guys honestly think those projects are now worse off for it? They accomplished what they set out to do and got a huge audience for it on top. If I was the author of either project I'd be happy.

[MegaManJuno]

The response from the team for Pokemon Uranium is priceless.

They "took it down" after 1.5 million downloads out of "respect for the rights holders"? Really? If they actually respected the rights holders, then they wouldn't have slapped someone else's properties into their game with no license to do so. They could have easily made it a Pokemon clone and changed the name and any possible assets that may be essentially stolen from legitimate releases (sounds/graphics/etc). In the 9 years they were working on this, nobody ever thought this was a bad idea..? Hardly. They wanted the buzz that came with the official property.

[Lilinda]

That's a little rich. Their actions were dumb, but fan games almost always come from a place of love on a franchise and wanting to work on it, but being unable to.

[MisterJones]

We sort of already had this discussion on the other thread. In any case a relevant link.

https://www.eff.org/deeplinks/2013/11/trademark-law-does-not-require-companies-tirelessly-censor-internet


And what I posted at the other thread:

http://www.inta.org/TrademarkBasics/FactSheets/Pages/LossofTrademarkRightsFactSheet.aspx

The relevant bit for this scenario would be: " a trademark may be deemed abandoned if the trademark owner licenses or authorizes other parties to use its mark without exercising adequate control over the use of the mark, which can include inadequate control over the quality of the goods and/or services offered under the mark.

In addition, a trademark may be deemed abandoned if the trademark owner purports to assign its mark separate and apart from the goodwill represented by the mark. Under U.S. trademark law, this often is referred to as an “assignment in gross” of the mark. Other countries may recognize assignments without the associated goodwill. Always check with local counsel in the country in which an assignment is contemplated."

As far as I know, we dont call videogames metroids. There is no confusion that official metroid products are being developed by someone other than nintendo. People wont go looking at Doctor M64 believing his page is the source of all metroid games either.


Billy! Stop metroiding all day!


Mooooom, all my friends like to play that call of duty pokemon!




There is a more valid copyright claim, specially om am2r since it is an actual remake, which would be considered a superior product over the original that i think is sold on vc.


As for this pokemon game, I dont ereally know much about it haha. The Pokemon Company would be the more affected ones over Nintendo anyway.

[Jorpho]

Copyright is for works (i.e., Super Metroid, the game itself) while Trademark would cover Samus, Zebes, Motherbrain and the name Metroid itself.

Look, here's the USPTO trademark search:
http://tmsearch.uspto.gov/bin/gate.exe?f=tess&state=4802:y3m1mu.1.1
Where's the trademark for Zebes?  Or Motherbrain?

The bullshit surrounding Sherlock Holmes was primarily based on Trademark law and not Copyright.

And what is your basis for that statement?  Because here's the basis for mine:
http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/60503-conan-doyle-estate-says-sherlock-not-free-yet.html

But attorneys for the estate of Sir Arthur Conan Doyle this week insisted that the complete characters of Holmes and Watson won’t be freed until the final 10 stories published after 1922 enter the public domain, in 2022.
...
“There is a very good reason why the Estate did not assert trademark protection: The Estate does not own any trademarks," Klinger told PW. “They have applied for them, and there will be substantial opposition."

[Reiska]

Because Nintendo (or The Pokemon Company International or whoever) owns a trademark on the term "Pokémon", they own the exclusive right to exploit the trademark for their own gain.  If they become aware that another, unauthorized party is exploiting the trademark for their own gain, they have a legal duty to protect their exclusive rights.  This is especially crystal-clear when money changes hands, and Pokemon Uranium's developer(s) had a Patreon, so on the surface (disclaimer: I am not a lawyer), there'd appear to be an extremely clear-cut case of trademark infringement there and Nintendo is, to some extent, being generous by only demanding a takedown and not actually suing.

In a case like AM2R where no money has changed hands, the issue is murkier, but still favors Nintendo; AM2R's developer used the Metroid trademark without permission, and released a free game with it in close proximity to Nintendo's planned release of an official Metroid game.  Nintendo could likely successfully argue in court that a reasonable person who saw AM2R might mistake it for an official Nintendo product, which would be a very bad thing for them if it turned out that AM2R was substandard in some fashion (perhaps a bug prevents it from being completed, or it's infected with a virus, or the uninstaller accidentally deletes system32*).  This was the core of Konami's trademark case against Roxor in 2005; because Roxor's product, In The Groove, was sold as a modification kit for Dance Dance Revolution machines rather than in its own dedicated arcade cabinets (at first), and many arcade operators did not apply the decals supplied by Roxor which were intended to be placed on the machines and would cover Konami's trade dress with their own, a reasonable person could have been able to believe that In The Groove was a Konami product.  (There was also a patent infringement claim which is immaterial to this argument, but the facts also favored Konami there.)  Konami's claims in that case centered on sections 32 and 43(a) of the Lanham Act, which would be equally relevant as concerns Pokemon Uranium and AM2R.  (And, if you're wondering, Konami v. Roxor ended with the latter capitulating and signing a settlement which required them to destroy all unsold product and irrevocably turn over all copyright ownership in In The Groove to Konami.)  Nintendo also has a vested interest in maintaining the case that Nintendo properties can largely only be played legally/officially on Nintendo hardware.

(* Obviously none of these are true; it's just a hypothetical.)

All of the above, of course, only touches on the trademark issues, and completely ignores the massive copyright problems with both fan games, which are a completely separate problem.  AM2R - necessarily, because it's billed as a fan remake of Metroid II: Return of Samus - replicates the level layouts of Metroid II.  The level layouts are copyrighted data.  So, too, is Samus' general design, the designs of the enemies in the game, etc.  (The actual game physics, however, are not copyrightable, and indeed, AM2R's developer could have made a game that plays "like" Metroid II but with a different main character, different enemies - even if they have similar game behavior - and different level designs, so long as he reproduced the game physics independently, i.e. didn't directly lift the code from Metroid II.)  This is, for instance, what happened with the original Great Giana Sisters game on Commodore 64 back in 1987; the first level of the game substantially copied world 1-1 of SMB1 (though the later stages deviate), and Nintendo issued a cease-and-desist order to the publisher, which they complied with and ceased distribution of the game.  (Contrary to popular belief, Nintendo never actually sued over GGS.)

Pokemon Uranium has these problems as well, because while, again, the basic rules of Pokemon are not copyrightable per se, graphics and such are, and Pokemon Uranium uses lots of assets from the DS Pokemon games, as well as copying their general user interface design. 

[Jorpho]

Because Nintendo (or The Pokemon Company International or whoever) owns a trademark on the term "Pokémon", they own the exclusive right to exploit the trademark for their own gain.  If they become aware that another, unauthorized party is exploiting the trademark for their own gain, they have a legal duty to protect their exclusive rights.  This is especially crystal-clear when money changes hands, and Pokemon Uranium's developer(s) had a Patreon, so on the surface (disclaimer: I am not a lawyer), there'd appear to be an extremely clear-cut case of trademark infringement there and Nintendo is, to some extent, being generous by only demanding a takedown and not actually suing.

But they'd have just as much right to demand the product be taken down if they only had copyrights and not trademarks, would they not? 

I think MisterJones's link made a good case for there being no such "legal duty".

[tvtoon]

Since you have been busy discussing the C&D, let me complement with a one liner: boring as the original games.

It didn't try to expand the concept, just stack all those systems, mostly up to Black & White, together. The battles are fast (setting without animations), could be made faster, the challenge curve is moderate, the variety is minimal but let's account that there are original monsters, the music is surprisingly good (most remixes) unlike the downhill that has been going since D&P, throwing your pokémon all over the net is the best point, overall enjoyable game. However, there is one BIG downsize: the game is a CPU huger and the animation is sluggish. It keeps searching for stuff inside that big data file, instead of loading all that crap at once.

Because of that, check the forums on how to fix the updater, as it is important to minimize the effects.

[Axiphel]

It doesn't even have full screen, vsync or controller support which boggles my mind.

[Reiska]

But they'd have just as much right to demand the product be taken down if they only had copyrights and not trademarks, would they not? 

I think MisterJones's link made a good case for there being no such "legal duty".

They would.  The difference is that copyright is (in theory, anyway) finite, and will always eventually expire (again, in theory), while trademark protection can be perpetual so long as the owner wishes to maintain the registration.

To make an unambiguous example not involving copyrighted material: trademark is the reason a couple with the last name McDonald cannot legally open a restaurant and call it "McDonald's Restaurant", because the McDonald's Corporation owns the exclusive right to open any new restaurants under that particular name.  If said couple DID open a McDonald's Restaurant, and the McDonald's Corporation found out about it and failed to take legal action against them, they could have their trademark on the name McDonald's voided because of their failure to protect the trademark's uniqueness.  This doesn't get into the other potential issues that don't have anything to do with trademark (what if this unlicensed McDonald's Restaurant causes a public health crisis, for instance, the legitimate McDonald's Corporation will suffer from the bad publicity even though they have legitimately no connection to it - this is precisely why trademark rights exist).

So, by extension, a reasonable person who sees a Pokemon game on a computer would assume Nintendo made it, because legitimate Pokemon games are only made with Nintendo's involvement.  When that statement fails to be true, it is a problem for Nintendo's branding.  This is true even if the Pokemon fangame used entirely original art assets and did not use any official pokemon, only fakemons, because the use of the name "Pokemon" itself is legally protected, and Nintendo has the exclusive right to use it or authorize third parties to use it (as is the case with Niantic and Pokemon Go).