We Own That Word. (Nintendo vs. Crackerjap)

19 Apr, 2012 by John Hawkins

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Brass Knuckles Webzine has always been interested in freedom of speech issues, net related lawsuits, and the ever rising wave of corporate lawyers trying to intimidate small sites into giving up their legally acquired domain names.

Well, a few days ago I heard about what I consider one of the most bald faced attempts at censorship I’d ever seen. Apparently Nintendo had issued a cease and desist letter because a page had used the word “Pokemon” without their permission. Sounds too incredible to be true? Read on….

I arrived at a web page called “Crackerjap”.: Crackerjap: is fairly small but exceptionally well designed little E/N and comics site.

I’d heard Nintendo had been hassling them and was interested in getting some more info. There was a: missive: up about it on the page. Here is part of a letter from Nintendo’s lawyers that begins with (key parts were highlighted in dark italics by me)….

“IDENTIFIED PROBLEM:: Pornographic Web site uses the POK’MON’ trademark in the Meta tags.

We represent Nintendo of America Inc. (“Nintendo”), the owner of the trademark(s) and/or copyrighted works listed above (the “Nintendo trademark(s)/works”). It has come to our client’s attention recently that you are using the Nintendo trademark(s)/works in the hidden text/visible text/Meta tags and/or title of the above-referenced sexually explicit Web site.: This use is unauthorized, and we are writing to demand that you immediately cease and desist this infringement of Nintendo’s intellectual property rights.”

For those of you that aren’t webmasters, Meta-tags are HTML codes intended to describe the contents of a web site for the benefit of search engines. A reader will never see a Meta-tag unless they do a view source command on the page they are looking at.

Furthermore, Crackerjap is not in any way, shape, or form a porn site.

Even if they were a porn site, there seems to be a major problem with Nintendo’s assertion. If you’ll notice, they are actually mention “visible text.” So Nintendo is claiming that merely using the word “Pokemon” is infringing on their trademark rights!

I emailed lawyer: Jeff Gordon: from Xpertsite.com to get his opinion on the matter. According to Mr. Gordon “Nintendo is going to have to show infringement – and just typing the word (into the headers) isn’t going to be infringement.”

Now getting a threatening letter from a gigantic corporation is never a pleasant experience, but it was going to get worse for Crackerjap. According to Crackerjap, their web host after getting the same threatening letter from Nintendo “immediately shut down our site indefinitely, and denied us access to our files for over a week.” This of course was after Nintendo falsely claimed that they were infringing on their trademark rights and also falsely accused them of being a porn site. Some people might consider that to be libel.

Now here’s the real kicker. According to Crackerjap when Nintendo contacted them, they had no Meta-tags on their active page at all. Here’s a quote from Crackerjap’s page “The only time we used Meta-tags was before we switched from html to shtml, and they found Pokemon in the Meta-tags of index.html, a file not used on our site for months and months. How they found it is beyond me. ” So this whole fiasco is over a page that wasn’t even accessible to the general public!

Now “Crackerjap” did what most sites do in a situation like this. They caved. After all, consider that they didn’t even have the word “Pokemon” in their Meta-tag anymore. So why not email Nintendo and try to settle things? I mean they had nothing to gain from fighting over Meta-tags they no longer even had up right?

So they attempted to contact Nintendo and get this straightened out. Well, I did a mini-interview with Jap about this issue and here’s how things went…

“Jap:: Then we….entered a period of communications shut down on the behalf of the lawyers working for Nintendo. We kept emailing them and they wouldn’t respond. Our hosting service said that they needed something in writing from the lawyers in order to reinstate our account but with the lawyers stonewalling us it was hard. The lawyer wouldn’t even talk to me because Cracker is the one who registered us with the hosting company and I’m not sure why he wouldn’t talk to Cracker.”

Now there are some serious issues that have come light here. Legal intimidation. Libel. Stifling free speech. So far, we’ve only heard Crackerjap’s side. So I got an email address for Nintendo’s lawyer’s from Crackerjap and sent Nintendo’s lawyer the following letter hoping to get some more information about this issue.

“My name is John Hawkins and I am writing an article about your demand that the web page “Crackerjap” (located at www.Crackerjap.com) remove the word Pokemon from their “Meta-tags.”

There were some questions I was hoping that you could address in more detail for the article.

1) In a letter you sent to “Crackerjap” you asserted that they were a “sexually explicit web site.” However, they are unquestionably not a pornographic site, nor do they appear to carry any sexually explicit material on their website. Why do you believe that their site is “sexually explicit?”

2) The wording of your letter seems to imply that you believe the trademark you have on the word “Pokemon” means that people cannot use the word on a website without your permission. To the best of my knowledge, there seems to be absolutely no legal justification for that position. Could you please clarify your position on that issue?

3) Are there other web pages you have accused of trademark infringement simply for having the word “Pokemon” in their “hidden text/visible text/Meta-tags and/or title?”

This article will be released to the public sometime between Jan 11th and Jan 16th. To insure that anything you say will be seen by me before the article comes out, I will need to receive a reply by noon on Jan 10th at the latest.

Thank you

John Hawkins

http://www.brassknuckles.net”

I received no reply. So I think it’s fair to assume that Nintendo didn’t see any assertions in my email that needed to be corrected.

Wrapping up, I think it’s disturbing that this sort of thing continues to occur on the web. We have case after case after case of lawyers trying to get their way simply by intimidating individuals with the threat of lawsuits. It’s bad enough when these companies try to hijack domains that they have no rights too, but now we’re getting to a point where companies are claiming that you can’t use a trademarked word without their permission. That’s plain old insanity. I’m wondering if I’ll get a cease and desist letter from Nintendo after this article goes live. After all, I’m doing the same thing that Crackerjap did, using Nintendo’s “word” without their permission. It’s a sobering thought…..