The infringement, according to the email from Melissa Morgan Nelson at Perkins Coie LLP in Seattle, came from the profile of a member named RuneLateralus, who opted to post a list of his favorite video games in lieu of his favorite books.
“I enjoy an ice cold Coca Cola on a hot day,” writes SuicideGirls administrator Sean. “Do you think Coca Cola is going to sue me for posting that?”
However, Nintendo of America issued an apology to the website Thursday, claiming that a computer glitch occured in their fight to protect their trademarks from being used in connection with promoting adult websites.
“The letter was sent as part of an ongoing Nintendo program to aggressively protect our younger consumers from the hundreds of sexually-explicit sites each year that use Nintendo properties to attract children,” said the video game manufacturer.
“We know that many of out fans are old enough to make their own choice about what they want to view on the Internet,” the company continued. “We value the support of our fans and we respect their decisions.”
Nintendo also offered both the user whose profile was targeted and the SuicideGirls administrator a free Nintendo system and game in order to make amends.
According to the original email, Nintendo somehow became aware that their trademarks were being used on an adult-oriented website and were less than pleased.
“It has come to our client’s attention recently that you are using the Nintendo trademarks [on] the above-referenced sexually explicit Web site,” the original email reads.
“Nintendo’s customers – many children and their parents – have come to identify the Nintendo trademarks with the high quality of Nintendo products,” it continued. “Your unauthorized use of the Nintendo trademarks will tarnish Nintendo’s reputation.”
A post on blog BoingBoing.net called the situation into question, though.
“I called the [San Francisco] and Seattle offices of the law firm representing Nintendo, Perkins Coie,” writes BoingBoing reader Josh. “They not only seem to not know about this, they can’t even look at it because their firewalls won’t allow them to get to porn sites.”
The Intellectual Property Enforcement group at Perkins Coie was unavailable for comment.
According to legal education website Nolo.com, owners of trademarks can stop others from using them depending on a variety of factors, including whether the trademark is being used on competing goods, whether consumers would be confused by the dual use of trademark and whether the trademark is being used in the same part of the country on related goods.
Nolo.com also notes that trademark owners may also claim that use of the trademark tarnishes the reputation of the mark or renders it common through overuse.
“For instance, consumers would not think that Microsoft Bakery is associated with Microsoft, the software company, but Microsoft Bakery could still be forced to choose another name under federal and state anti-dilution laws,” according to the website.
