Finally, game console manufacturers like Nintendo and Microsoft should take control of the entire emulation phenomenon by creating their own websites where emulators for older games can be accessed for a nominal fee. By satisfying market demand for access to older games, and backing this effort through judicious application of the companies’ intellectual property rights to shut down other emulators, Nintendo and Microsoft can satisfy market needs and stop the cycle that promotes unauthorized emulation.
To date, console manufacturers have used only a very small portion of their
available options to protect their intellectual property. Indeed, the majority of the legal cases have been brought on the basis of basic patent and copyright violations. We contend that an approach that guarantees maximum intellectual property protection entails console manufacturers utilizing all of their product rights—patents, trademarks,
and copyrights—simultaneously across their entire portfolio of gaming consoles and
video games. A comprehensive strategy is necessary because of variations in the life and
type of protection afforded by the different regimes of intellectual property. variations are illustrated below:
Utility patent for the console BIOS
Secure copyrights for video games and relevant packaging
Design Patent for the console’s Start-up Screen User Interface (UI)
Secure copyright protection for console packaging
Secure copyright for console BIOS
Secure copyright for the console’s start-up screen
File Intent to use (ITU) thirty-six months prior to launch of video game and console moniker File for monikers trademark protection in both typed drawing and stylized format
Secure digital trade dress protection for console’s start-up screen Protect trademarks via commercial usage of them
109 110 , 214 F.3d at 1022. James Conley & John Szobocsan, at 33.
, MANAGING INTELL. PROP., Jun. 2001,