Congratulations Nintendo - New World Brand Fail!
Nintendo falls into the ranks of companies who find ways to alienate fans in the name of brand protection. Nintendo has the luxury of having a brand so compelling to their fans that they want to make stories about the brand. In this case some lovers of the Zelda video game series created a movie based on the characters and gave it away for free.
Nintendo (I'm because of some warning made by a paranoid lawyer) notified these fans that they could not distribute the film based on their Intellectual Property.
We've seen this before - brand owners shutting down fan inspired uses of their brand for non-commercial purposes. The main reason is because trademark law has a requirement that trademark owners must actively control their brand or risk losing it. Thus evolved the immediate response of the infamous cease and desist letter to someone using any resemblance of an company's brand. The evolution of the internet and user empowerment has changed the brand environment and how consumers want to interact with brands they like.
Today fans can inexpensively create all sorts of media products using brands; even create brand themed movies. They do it for the love of the brand, sometimes for self-promotion, but rarely for profit. The traditional response of C&D letters in these cases do more harm than good. It is time for lawyers to think about new ways to advise clients in these situations. The goal should be to protect brand owner rights while encouraging fan support. C&D letters protect the brand, but alienate the fans.
How could have Nintendo protected their brand while encouraging their fans?
- Create a Brand Kit for fans with logos and character images that anyone can download (or else they will create their own)
- Create brand guidelines for fan use
- Grant conditional license to use brand IP subject to guidelines about content can be used, non-commercialization, how certain trademarks are presented (non-modification of logos)
- Require fans to acknowledge brand owners ownership of trademarks in their materials
- Create a point of contact for permissions if fans want to charge a fee to use their work-product from the Brand Kit
By creating guidelines, brand owners have effectively controlled their brand (satisfying legal requirements) while empowering the purest uses of the brand by their devoted fans. By establishing a point of contact for those situations where fans feel they need to charge a fee for their work-product created from the brand, the brand owner has created an avenue to converse with fans and evaluate those grey areas of brand use. Together, these two prongs give the brand owner fair ground to ask people who use the brand outside of those guidelines to stop their activities.
The goal is not to let people destroy a company's brand. It is the job of a lawyer to understand what does a brand owner want to accomplish. I am pretty sure they do not want to alienate fans. They want to engage fans, create new fans, all while protecting the brands IP.
