So you know, I've googled for FOUR different sources to explain Fair Use. ONLY the fourth gave an answer, and cut the chase, even properly presenting examples involving gaming of when something is fair use and when it isn't. So you know, knowing those laws you linked is moot, because each court reviews fair use in a different way, with usually two approaches, in which the subtractive approach favors the defendant part, while the one where they analyze the infringement as a whole tends to favor the plaintiff. Is it fair? No. And the problem is exactly what you linked: nothing is 100% black and white, it is completely gray.
To cite and example: a parody of Cabbage Patch Kids, known as Garbage Pail Kids, got sued for trademark infringement. Even a parody, which most people mistakenly assume to be "protected under Fair Use", isn't safe from legal threats. Of course, they solved it out-of-court.
To cite Bambauer in this article
: “Fair use is a fuzzy standard, not a rule,”
. But that isn't all, look how the article closes it: "You’re probably starting to see a pattern here. ROMs are such a gray area because there are potential legal defenses on both sides—but no one’s truly tested these arguments before."
Despite the article concludes saying it is illegal anyways, it has already stated it is in a gray area, as both sides can defend themselves. Theoretically, let's say Emuparadise claims defense under the basis that they are simply archiving games that are no longer produced as to preserve videogame history. Nintendo could argue that Emuparadise is simply stealing from them and distributing intellectual property. It's a defense from both sides, even if it ain't the most solid. In a different scenario: imagine if someone dumps a VC game and finds out it is a named ROM similar to any rip you could have find in EP, similar to a T, to the very point you could perhaps find a hidden message by a dumper. In that case, who stole who? Who takes the guilt. That puts them in a loop: Dumper upped to EP, Nintendo took the dump and "made a game", Nintendo threatens EP over said uploaded dump, but hey! they got something illegal themselves to "make it legal", therefore it is legal and EP doesn't have to comply OR it is illegal and Nintendo would better hush it.
Plus laws ain't the same from country to country, it changes, and in some countries it changes from state to state. As for loss of Trademark, this is what the search on loss yelded:The rights to a trademark can be lost through abandonment, improper licensing or assignment, or genericity. A trademark is abandoned when its use is discontinued with an intent not to resume its use. Such intent can be inferred from the circumstances. Moreover, non-use for three consecutive years is prima facie evidence of abandonment.
Plus, on similar subject: https://www.eff.org/deeplinks/2013/11/trademark-law-does-not-require-companies-tirelessly-censor-internet
Basically, Nintendo has become a Trademark Bully. Whether I have or not a leg to stand on my arguments, I have a sword and shield to fight for it, defend what I believe.