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Law of the Game on Joystiq: Trademark infringement? Not like-wii
Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games: GamePolitics recently posted a piece on Forbis, the makers of the weemote, and an issue that is all too familiar in Trademark law: trademark infringement. To summarize the GamePolitics piece, Forbis Technologies trademarked "weemote" in the year 2000 for a children's television remote. According to a Time piece on the weemote, sales have fallen considerably since the Nintendo Wii was released. The blog-o-sphere coined the term "Wiimote" soon after the Wii hardware was announced, and the term has stuck ever since. Nintendo, however, does not have a trademark on the term "wiimote," only on "wii."Forbis is hoping to enter into a business arrangement by which it can re-brand its product and Nintendo can take control of "wiimote" and "weemote" (pronounced the same) because, as they put it, "the damage has been done here (whether intentional or not)." In fact, in cases of possible infringement between a significantly larger player and a smaller one such as this, a settlement of this nature would not be unusual. Even if Nintendo believes it would be successful in an infringement suit with Forbis, this may be the far cheaper option to resolve the issue. After all, the weemote brand had minimal value before the introduction of the Wiimote based on the company's self-described weak sales. Nintendo has thus far declined to purchase "weemote." But stopping at an out-of-court settlement wouldn't do much to illuminate the legal points that exist here, so let's take a look at this as if it were going to go to trial.
Weemote maker wants Nintendo to buy his trademark, release him from this iron cage
We're going to guess you've never heard of the Weemote, a little blue remote control made by a company called Forbis. The egg-shaped remote control and its parent company are reportedly in financial trouble ever since another company came out with something a lot of people are calling the "Wiimote." While the Nintendo Wii Remote's official name isn't that word (we refuse to type it again), evil bloggers and retail chains have taken to the term and Forbis claims its brand has been diluted, confused, and passed up. Owner John Stephen told Game Politics that he would like nothing more than to have Nintendo buy out the trademark and let him move on to something called, oh, let's say, the X Bocks, a new microbrewery project. The big surprise out of all of this? Nintendo isn't interested. In fact, it has no legal reason to do so, either -- it's never officially called the Wii Remote anything else. Of course, that's not to say Ninty shouldn't do the right thing here (and make our jobs just a hair easier) by buying out the mark and sanctioning the nickname, but don't hold your breath.
Wiimote triumphs over Weemote: A small business sob story
Sometimes, it really sucks to be the little guy (especially if the big guy you're up against is Nintendo). Take Forbis Technologies, for example, who came out with the Weemote (and trademarked the name in 2000) long before the Wii even launched. Nintendo never officially refers to the Wii's controller as a Wiimote, and always calls it by the full name Wii Remote. Retailer and blog outlets such as ourselves are the cause of the problem, however, as we constantly use the unofficial nickname. Ever since the term "Wiimote" caught on, though, the Weemote's sales have "fallen considerably."
