Nintendo sues Nyko over nunchucks, ninjas still silent

It looks like Nyko's nunchuck controllers for the Wii could possibly be getting a whole lot more limited, at least if a recently filed lawsuit plays out the way Nintendo would like. As Bloomberg reports, Nintendo is claiming that Nyko's wireless Kama nunchucks not only infringe on its trademarks for the Nunchuk name and packaging, but that they wholly appropriate the "novel shape, design, overall appearance and even the color and materials used in the Nintendo Nunchuk controller." For its part, Nyko is not surprisingly only saying that it has "not knowingly violated anyone's intellectual property," and that they're "still examining this."

[Via Wii Fanboy]

[pina @ Jun 13th 2008 2:27PM]

I don't know, it looks off-white compared to the Wiimote

[bohsocks @ Jun 13th 2008 2:50PM]

Does this mean I can sue a classmate who writes a better paper on the same topic as me? Well, I assume that would be provided I wrote the paper first..... hmm... not worth it.

[sinai @ Jun 13th 2008 2:58PM]

... it's not just about color: "novel shape, design, overall appearance AND even the color and materials"

all those things together make (notice the "AND") the Nunchuk, the Nunchuk.

[pina @ Jun 13th 2008 3:05PM]

Yeah... sarcasm doesn't play out so well over text.

[Alex @ Jun 13th 2008 3:21PM]

That's why you put a '/sarcasm.' at the end of your comments.

/sarcasm.

[Darkest Daze @ Jun 13th 2008 2:33PM]

Different shape, different color, and adds wireless...I don't see how it's an exact copy. Nintendo, getting greedy and not even supplying it's own alternative to the one the 3rd party's putting out there.

So Nintendo, where's your wireless Nunchuk, if you don't want us to have this one?

[Derbeste @ Jun 13th 2008 2:43PM]

I don't think nintendo is necessarily mad that a 3rd party is trying to meet a demand not met by Nintendo itself. I mean...how many accessories have been made for past Nintendo consoles as well as handhelds? Nintendo has also been making more efforts recently than it has in the past to be nice to 3rd parties (particularly in software).

The problem is probably that Nyko is trying to do it without paying a royalty.

I am as against frivolous copywrite lawsuits as anyone...but I actually think Nintendo has a case in this one.

It's not like Nintendo is sueing them for using a similar color alone (yes I'm looking at you, T-Mobile).

You have admit....it's pretty obvious to see where Nyko got it's inspiration for that design as a whole.

[Low Ranked @ Jun 13th 2008 4:07PM]

Copywrite?

[Idlemind @ Jun 13th 2008 2:40PM]

Nintendo is such a fun company...
Its easy to forget that they have a legal department.


It's hard to picture Mario suing anyone.

[NHAnimator @ Jun 13th 2008 2:44PM]

That's why they have Luigi on the payroll.

[Wormbolt @ Jun 13th 2008 2:53PM]

OBJECTION!

-Phoenix Wright

[Vidikron (FU) @ Jun 13th 2008 3:44PM]

Are you kidding? They were bullies to everyone back in the NES/SNES days. It appears that with the success of the DS and Wii their old arrogance is returning in full force. Everything from suing Nyko for making products Nintendo should have made from the start to calling their more loyal fans "geeks and otaku" while dismissing the calls for more storage. Thanks, Nintendo.

[Alex @ Jun 13th 2008 2:40PM]

Isn't that kind of the point, that it looks like the wii nunchuk so you know what the hell you're buying?

[Alex @ Jun 13th 2008 3:31PM]

Listen, pardner, this here Blog ain't big enough for the two of us.
Therefore, I will change my name to:
'The Alex.'
or
'Alex: Talking vintage crap since before the other evil, invading Alex.'

Or, YOU can change your name to:
'Alex II'
or
'The silliest Alex'

Either will do.

Have a nice day!
:)

PS, I'm suing you on 'Illegal reproduction of my soul.' Expect a letter in the post in the next 7-10 working days.

[Alex @ Jun 18th 2008 1:06PM]

Dear Sir,

Clearly you are mistaken. I believe you've already accused the BMW pic Alex of stealing your soul. http://www.engadget.com/2008/06/01/japanese-scientists-craft-planets-smallest-ramen-bowl/
Until further evidence comes to light, I can at this time believe only that you, sir, are the soul stealer, and are trying to throw the scent off of your own trail.

Sincerely,
Alex

[bradwarren @ Jun 13th 2008 2:47PM]

This should have came stock with the Wii.

[Alex McKee @ Jun 13th 2008 5:26PM]

This is obviously true, but will never happen because nintendo is set on getting as much money out of us as possible. I'm surprised the Wiimote was not included as wired. Nintendo would probably pass that off as a feature, like "strangulation action"!

[tekdroid @ Jun 13th 2008 2:49PM]

can't they settle this with a fight, like real men do?

Nyko in this corner using its products.
Nintendo in the other with its own.

FIGHT!

[d @ Jun 13th 2008 5:19PM]

while i too wish nintendo supplied a wireless remote, they do have the whole wii and wiimote with them...

and that's true for the lawsuit as well. people may buy (ok, will buy) nyko's wireless nunchuck with a wii and wiimote

[bohsocks @ Jun 13th 2008 2:52PM]

im in ur corner, improving ur nunchuks

[Kris @ Jun 13th 2008 2:56PM]

Just think of how many dildo companies will be sued!

[elvio @ Jun 13th 2008 2:57PM]

between this story, the linked original, and the comments, there's mention of trademarks, patents, and copyrights. i'm confident there copyrights aren't at play here, but does anyone know if the actual suit is one of trademark or patent infringement? the details about shape appearance, color, etc. sound trademark-ish to me. if that's the case, it certainly doesn't need to be an exact copy, as had been suggested; a more appropriate standard is one of likelihood of confusion (and the courts will look at the sophistication of market for the product when making that determination, which being largely children here, hurts Nyko's case).

[Jason @ Jun 13th 2008 4:09PM]

Well, since Nintendo has no wireless 'chuck, there's no confusion. Either you want the cord or you want ...er... discord.

[elvio @ Jun 13th 2008 5:08PM]

maybe--and that's probably what nyko would argue in part. but just because you're not confused doesn't mean somebody else (especially the unsophisticated market here) won't likely be.

[Jason @ Jun 13th 2008 8:06PM]

In spite of the fact that I was only making a joke, I'd love to clear this up for you.

Whether or not someone would be confused is moot if the variants in the purchase decision is based up on features alone and the trademark holder has no competitive product with that feature.

In other words Nintendo can't say, "Well Joe consumer might buy Nyko's wireless nunchucks thinking it was a Nintendo wireless nunchuck and thereby pinching a sale that should have been ours"

The reason is that the natural extension of the claim is that if Joe had thought it was a Nintendo chuck then he would have been deciding between a wireless and wired Nintendo chuck and he chose the wireless, which presumably he thought was Nintendo. Since there is no Nintendo wireless, there was nothing to be pinched in the first place.

Whether Joe is Joe Smarter than ME or Joe Slow as... so as to ultimately be confused or not is irrelevant here.

[Bethany @ Jun 13th 2008 8:33PM]

Jason-

Actually, courts do take actual consumer confusion into consideration when deciding trademark cases. Check out the decision/discussion in Elvis Presley Enterprises, Inc. v. Capece if you're so inclined.

[Jason @ Jun 13th 2008 10:17PM]

Bethany, read first; then post. Of course courts take customer confusion into consideration. However, in this case, upon considering the confusion issue, it becomes very obviously moot. I'm not saying it wouldn't be a valid point. I'm saying the point doesn't exist.

The Velvet Elvis (which was a really lame decision, typical of the 5th Circuit - customer confusion always takes a back seat to the question of whether the TM holder and offender are competing in the same market or not) doesn't apply here at all. The similarities and differences in a service such as the Velvet Elvis are far too intangible. If you had read closer, you would have noted that heavy consideration was given to that fact in rendering the decision.

Even if I was compelled to agree with the 5th on this, it would be because I could ever so vaguely see where a customer seeking a genuine "authorized" Elvis vacation destination experience or somehow seeking to patronize the Elvis estate might actually have passed up a trip to Graceland for a cheap restaurant.

Here there's no contest. Tangible product, obviously unmatched feature benefits over and above Nintendo's offering so that EVEN IF CONFUSION HAD OCCURRED it could in no way have harmed Nintendo. You can't LOSE a wireless sale on a wireless product that you don't make. No reasonable likelihood that any competitive advantage could have fallen to Nyko from customer confusion because Nintendo had no competitive product, and the dang thing is LABELED NYKO.

[ArcticFox @ Jun 13th 2008 2:59PM]

Maybe if Nintendo got off their ass and stopped ignoring what the people who buy their damn console want and stopped being arrogant there wouldnt be any need for 3rd parties to step in.

[Dan Davis @ Jun 13th 2008 3:16PM]

Nintendo holds a copyright on white?

Better not let Apple know...

[MastrCake @ Jun 13th 2008 7:11PM]

What about Microsoft?

[Tom @ Jun 13th 2008 8:49PM]

Nah, they've got the copyright on cash.

[ianal, but @ Jun 13th 2008 9:23PM]

No. Nobody holds a copyright on white. Nobody holds a copyright on maroon, red, black, &c. Trademark. Trademark! I wish people would quit throwing these terms around like they're interchangeable.

[MastrCake @ Jun 14th 2008 12:26AM]

Yea.... That was supposed to be sarcasm, ianal. All three of those comments above yours. Didn't catch it, didja?

Oh, and for the record, I DO NOT anal.

[wrldruler @ Jun 13th 2008 3:21PM]

So.....where are all the lawsuits for the gamecube 3rd party controllers shaped like the original nintendo ones? or the 3rd party memory cards that "stole" nintendo's design? Sounds like they're getting a little upitty with their next gen console :P

[i am a banana @ Jun 13th 2008 4:21PM]

You know, that's exactly what I was thinking… Unless the 3rd party GC controllers (&c.) went through an official licensing program that Nyko has decided to sidestep…

[phono48 @ Jun 13th 2008 3:23PM]

say the article title ten times fast

[MastrCake @ Jun 13th 2008 7:12PM]

Are you kidding? I can't even say that once!

[Haikibutsu @ Jun 13th 2008 3:27PM]

So there is no third party wiimotes?

Also, when will Nintendo have an eject button on the wiimote?

[Erik @ Jun 13th 2008 3:37PM]

You're already flailing your arms around. Is it that much more to walk up and eject the disc (which you'll have to go to the Wii to replace or put away in any case)?

[Matt @ Jun 13th 2008 5:22PM]

Why an eject button on the Wiimote rather than the dashboard? The 360 lets you close and open (only when there's no game) the tray like that.

[Grey Acumen @ Jun 14th 2008 12:09PM]

the 360 has a tray, so an eject button actually has a purpose, because you can open the tray while still getting a disc, and close the tray while you are putting the disc away.

The Wii is slot load, You either are putting the disc in, or taking it out, there's no other need to mess with that, so there's really no need to have an eject button on the wiimote. All you end up doing is have people accidentally ejecting their discs while they're flailing around.

[robjennings @ Jun 13th 2008 7:28PM]

Sounds like someone is getting ready to launch their own wireless nunchuk solution.

[digitallysick @ Jun 13th 2008 5:03PM]

This is stupid, nintendo should of created this controller, rather than waste money fighting it. Nyko filled a void that nintendo would not, so why sue them?

[iBseriousDotCom @ Jun 13th 2008 6:43PM]

Nintendo just tell us when to strike. {Ninja Silent Laughter}

[nelsonad @ Jun 13th 2008 6:58PM]

Nintendo sues Nyko over nunchucks, ninjas still silent
Nintendo sues Nyko over nunchucks, ninjas still silent
Nintendo sues Nyko over nunchucks, ninjas still silent
Nintendo sues Nyko over nunchucks, ninjas still silent
Nintendo sues Nyko over nunchucks, ninjas still silent
Nintendo sues Nyko over nunchucks, ninjas still silent
Nintendo sues Nyko over nunchucks, ninjas still silent
Nintendo sues Nyko over nunchucks, ninjas still silent
Nintendo sues Nyko over nunchucks, ninjas still silent
Nintendo sues Nyko over nunchucks, ninjas still silent

[nelsonad @ Jun 13th 2008 7:00PM]

poo, that was meant for reply to phono48 =[

[Jason @ Jun 13th 2008 8:09PM]

No need to poo yourself, we get it.

[Anonymous @ Jun 13th 2008 7:12PM]

wow, fuck you nintendo

[Viakenny @ Jun 13th 2008 7:36PM]

after all, wireless Nunchuks aren't Nunchuks.

[Jason @ Jun 13th 2008 8:11PM]

Yeah, and without a strap I think they'll just be chucks.