Nintendo Opens Up New Front In War On Fans: ROM Mods
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Let it never be forgotten that Nintendo hates you, Nintendo fans. The gaming giant has a long and decorated history both of anti-consumer practices, such as attempting to poison the roster of YouTuber game reviewers, bricking consoles if gamers don't agree to its post-release EULA updates, and attacking some of its biggest and most creative fans by issuing takedowns and threats for fan-made game levels, fan-made games that have barely anything to do with its IP, and shutting down fan-made remakes of games that are decades old.Yet Nintendo has been notably lenient in some areas in enforcing its intellectual property as well. The most prominent of these would be what's referred to as "ROM hacks", in which the original Nintendo ROMs are modded to include new and original content. These ROM hacks abound and are readily available, requiring the original game (or a pirated version) in order to be used. Now, for the first time reported, one of these ROM hacks has fallen into the sights of Nintendo's lawyers.A fan-made Pokémon ROM hack in the works for eight years was set to launch this Sunday. But a letter sent by Nintendo's Australian law firm on Wednesday has stopped those plans in their tracks. According to Adam "Koolboyman" Vierra, developer of the fan-made Pokémon Prism project, Nintendo's Australian law firm sent him a cease-and-desist letter, which he uploaded to Google Drive with identifying information redacted. (American representatives for Nintendo were not able to confirm the letter's authenticity as of press time.) The request alleges that Koolboyman's project, which alters the source ROM of the 1999 game Pokémon Gold to create an entirely new adventure, violates multiple Australian laws. The location of all of this requires some explanation. Vierra lives in California and Nintendo's legal team is based out of the United States, but Vierra had been planning on releasing the game via Rijon.com, which is based in Australia. It was Nintendo's Australian legal team that sent the threat letter. That team has previously taken action against downloaders of pirated Nintendo games, but not on creative fans producing these kinds of ROM hacks. As noted before, the company worldwide has generally allowed these add-on mods to exist. Not so much in this case, for reasons not currently being offered by Nintendo.But let's all not lose sight that this is a mod on a game nearly two decades old created by a fan to incorporate brand new gameplay and story elements into the existing game and engine, and was going to be offered free of charge. It's CounterStrike, in other words, except using a Nintendo product. And there are entire sites and fan-groups built around these sorts of mods. They're a boon to gaming companies by extending the life of the demand for a game for free, as fans take on the work of adding on to it in a way that still requires the original in order to play it at all.And this isn't even Vierra's first go at this sort of thing.Vierra himself might have assumed Nintendo would allow a Pokémon ROM hack, because his last one, Pokémon Brown, launched in 2004 with nothing in the way of dispute from Nintendo. That hack's new "Rijon" region would have been hugely expanded upon in Pokémon Prism. It would have contained other tweaks, such as Brown's special monster types (wood, gas, wind, abnormal, and sound), a tweak to the game's "clock" system, and new music compositions. (Other Pokémon ROM hack depositories are easy to find online.) One could say that this all reeks of a legal team in a foreign country not being on the same page as the HQ back home. Except that it can also be said that expanding IP enforcement to this new front is perfectly in line with Nintendo's general heavy-handed approach to protectionism. Because Nintendo can't help itself. Because Nintendo hates you.
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posted at: 12:00am on 23-Dec-2016
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Butterball Sues Australian Wine Company Over Its 'Butterball' Chardonnay
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It just won't stop when it comes to trademark disputes involving the alcohol industry. Such disputes between wine, beer, and liquor companies are legion. In such a crowded industry, it needs to be hammered home that the purpose of trademark law is not so that big companies can bully smaller companies, but rather so that customers are protected from imitation products and from being confused as to who they are buying from.The latest such dispute is between Butterball, the turkey-selling king based out of North Carolina, and a small wine company in Australia. At issue is one of McWilliam's Wines Group's chardonnays, which the company has branded as its Butterball Chardonnay.According to a complaint filed Dec. 12 in the U.S. District Court for the Eastern District of North Carolina, Butterball states that McWilliam’s Wines Group Ltd. “produces, sells, distributes, and imports into the United States a variety of Evans & Tate branded wines, including a type of chardonnay named ‘BUTTERBALL.’”Butterball states that its trademarked goods and services range from turkeys and marinades to fat fryers and mobile device software. The complaint goes on to say, “The consumer goodwill associated with the BUTTERBALL Marks is one of Butterball’s most valuable assets. Accordingly, the integrity of the BUTTERBALL Marks is extremely important to Butterball and crucial to the continued vitality and growth of Butterball’s business.” Notably absent from Butterball's list of goods and services using the Butterball trademark is anything having to do with wine in particular, or even beverages in general. And there is good reason for this: Butterball doesn't make wine. A brief look at its products page confirms what everyone already knows: Butterball makes meat products, along with a few ancillary items. In other words, when you think of Butterball, you think of turkey. It seems unlikely that the company can argue it is in a competitive marketplace with a wine seller at all, never mind that there might be any kind of customer confusion that could occur due to the name.And the branding of both companies doesn't make confusion any more likely. Here are both brands side by side.
Yeah, the branding of the wine label looks nothing like Butterball's branding, and it has the name of the wine company clearly depicted on it. Now, I'm sure that Butterball will at some point trot out the trademark bully's favorite excuse and claim it had to file this lawsuit or risk losing its trademark, but that isn't actually true. It would only be true if there were actual potential confusion or a real demonstrable infringement within Butterball's marketplace. Neither are the case.This lawsuit is a real turkey, in other words. I'm so, so sorry...
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