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Comment by will_brown | Hacker News Reader

How was I reaching? I have two examples of companies who had trademarks, their marks were knowinglying infringed, they lost their otherwise legal right to enforce the mark for failure to do so timely.

>yeah, I"m going to find in favor of the would-be infringer here because Nintendo didn't go after that C64 port that one time in 2019."

That’s not how Law works. Your mixing confusion in the market place and laches...the jury doesn’t pick and decide what laws apply.

If I saw a T-shirt with Mario on it for example, or a Mario game...I would surely think the owners of the Mario marked either created or licensed the work...that’s the definition of confusion anyway, but that’s not the issue being discussed.

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> the jury doesn’t pick and decide what laws apply

Effectively, you are right. But technically, they can. Via jury nullification. But if you know about this, then you typically get immediately weeded out during the selection process.

> How was I reaching? I have two examples of companies who had trademarks, their marks were knowinglying infringed, they lost their otherwise legal right to enforce the mark for failure to do so timely.

You picked two examples where confusion over the nature of the mark was the turning point in the case. I ask again: whom is Mario being confused for here?

> That’s not how Law works.

This is precisely how civil law works. Precisely. The fact that you cherry-picked a case that ended in summary judgment does not change this.

>This is precisely how civil law works.

How many trademark cases have you litigated?

How many cases have you won/lost on summary judgment? SJ is taking all facts in a light most favorable to the nonmoving party they still lose as a matter of law...a jury wasn’t even needed to make a finding of fact, because the prevailing parties were entitled to judgement as a matter of law. It’s pretty damn persuasive.

Who is Mario being confused for? Again not how the law works at all...no one is confusing Mario, the infringing Mario is being confused for a legit Mario, that would be a part of the infringement claim. Again if I start making Mario T-shirt’s the public would be confused about the origin and think it’s legit product...why wouldn’t they? But it’s not it’s an infringing product trading off the good will of the mark, you bet any infringers would defend a trademark claim by showing the Mario trademark owner has abondoned the mark, and present evidence of the owners knowing people copied the Mario games/marks and they didn’t take any action to enforce it.

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