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Volume 2, Number 2 (Spring 2004) - page 23 / 30

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¶62

¶63

Vol. 2:2]

James Conley,

Lack of digital Trade dress protection for the Nintendo 64 “N-Cube”

Lack of stylized Trademark protection for “Nintendo 64”

Finally, game makers must remain vigilant about supporting their trademarks after the hardware and software for old consoles have been retired. After five years of non- commercial usage, the trademark becomes available even if the USPTO status of the mark is “live”.124 As of this writing, a trademark squatter filed a petition for cancellation against Hasbro since it has not used the trademark COLECOVISION (gaming console) for at least five years.125 The potential ease with which a trademark cancellation can be achieved further bolsters the argument for why console manufactures should make emulators for their older console systems, since by developing and marketing an emulator for an old game console, a company can maintain its trademark. Figure 12 summarizes the legal strategies available to console manufacturers.

Build IP portfolio by

Offer to drop litigation in

copyrighting and patenting newly

exchange for concessions protecting console

acquired software

software revenue streams

Eliminate competitors with the best technology

Distract leading emulators with legal battle and drain

and largest user bases

financial resources

Acquire the best emulators

Enforce IP rights against emulators

Enforce IP rights against ROM distributors 9Financially support organizations such as ESA to minimize ROM piracy 9Litigate directly against ROM distributors (websites & P2P)

V.

CONCLUSION: A THREE-PRONGED STRATEGY FOR MEETING THE CHALLENGE OF EMULATION

To date, video game console manufacturers have engaged in a legal offensive to shut down emulators. To succeed in meeting the challenge posed by emulation, the incumbent console manufacturers will need to protect and leverage their intellectual property in concert with an appropriate business strategy and marketing methods. Companies like Sony, Nintendo, and Microsoft skyrocketed to the top of this industry by identifying a market need and developing quality products to meet that defined need. To stay at the top, these companies must accept that the pace of technological change will always exceed the pace at which the law can respond. Business leadership, including attention to pricing and the satisfaction of customer demand, will be just as critical as

124 U.S. PATENT AND TRADEMARK OFFICE, TRADEMARK MANUAL OF EXAMINING PROCEDURE

APPLICATION REQUIREMENTS § 718 (3d. ed. 2002), h t t p : / / w w w . u s p t o . g o v / w e b / o f f i c e s / t a c / t m e p / 0 8 0 0 . h t m # _ T 8 0 1 ( l a s t v i s i t e d J u l y 4 , 2 0 0 4 ) .

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