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For old consoles like Game Boy Classic/Pocket/Advance there are no official spare parts available anymore.

But there are a lot of unofficial spare parts. Some of them have the Nintendo logo and Nintendo trade marks (like "Game Boy") printed on them.

For example you can find GBA lenses on eBay. Most of them are wearing the official "Game Boy Advance" logo. I wonder if this is legal. The logo graphic is copyrighted by Nintendo and also "Game Boy" is a registered trade mark.

When I asked a shop about the legality I was told there is "right to restore". But I didn't find anything on the internet about it.

Some manufacturers print the logos and other's don't. So I'm not sure.

I asked on meta and they told me to ask here.

zomega
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    In what jurisdiction are these parts being bought / sold? There isn't one set of laws that applies to the entire world, you know. In particular, we can't know if there is a "right to restore" in your jurisdiction unless you say where it is. – Nate Eldredge Sep 11 '22 at 02:43
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    @NateEldredge The answer should be in relation to a western state having working copyright laws. I think it doesn't matter if this is the USA, England or Germany because the answer will be all the same. – zomega Sep 11 '22 at 10:15
  • @somega Details might hugely differ, however. – glglgl Sep 14 '22 at 06:02

1 Answers1

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Marks are to denominate the origin of goods.

Nintendo built Gameboys for decades.

Some GameBoys have aftermarket parts like the NAKI Action Light, a peripheral never made by Nintendo but was nothing but a light and a 1.5 magnification lens. It was advertised as "Fitting a Game Boy TM" and didn't use Nintendo marks. That is nominative use and allowed.

Then, Nintendo actually had stocks of spare parts that ended on the open market by now. those are genuine Nintendo parts, made for Nintendo, with the marks on it. Those are proper marks.

Some people bought up tons of old Game Boys and took them apart for spares. Those are still genuine parts, even if used, and the mark is proper.

Nintendo didn't make all the parts for Gameboy themselves. They had contracted OEMs (original equipment manufacturers) that created parts for construction of the toys. These were in part branded and marked in the OEM factory still, the OEMs had a license to make and mark parts. Parts produced till the lapse of the license would be most likely proper as for most intents and purposes Nintendo did endorse the manufacturing in this fashion. However after the licensee lapsed or if it doesn't contain a "put the markings on it" clause, marking would not be allowed (anymore).

Finally, there are spare parts that were just made to Nintendo specs, that are not originating with Nintendo, and are marked with Nintendo marks. Such copy parts infringe on the Trademark of Nintendo.

There is legal space in the aftermarket spare part market: Parts that are to specs but not marked with the marks denominating the origin. Those can be advertised akin to the NAKI Action Light "fitting a Game Boy TM" without infringing on marks.

Trish
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    Thank you for this great answer. I talked to one of the shop owners selling these GBA fake lenses. He said everyone has the "right to restore" his Game Boy to its original state. This includes the logo. And because Nintendo does not provide spare parts anymore these fake lenses are legal. Is this true? – zomega Sep 10 '22 at 11:06
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    Yes and no: He may sell you the parts. And a vinyl to apply the logo. But he is infringing on Nintendo's trademark by selling it as a genuine part and technically the part may not have the logo on it. The repair, including to the logo would be a right of repair case. – Trish Sep 10 '22 at 11:08
  • Can't marks be not just to denominate the origin of a good, but also part of its aesthetic design? For example, if the Nintendo logo was molded into a plastic or metal part, and not a simple sticker, it would be impossible to restore to the original look unless a seller made a spare part with the logo molded in -- would that also infringe? – usul Sep 10 '22 at 22:55
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    @usul I doubt that Nintendo, or any other company, gives even the slightest passing concern as to whether an unlicensed third party can produce an aesthetically identical restoration of its products. Even providing a simple sticker infringes on the trademark, just not as much as actually putting it on the part for you. There's a reason companies trademark things and Nintendo goes after everyone for regarding trademarks and copyright. – DKNguyen Sep 11 '22 at 00:42
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    @somega "And because Nintendo does not provide spare parts anymore these fake lenses are legal." That's kind of like arguing it's legal to sell bootlegs of Disney movies because Disney currently has them locked up in their vault and isn't selling them. That "right to restore" sounds more like words that someone made up because they sound good rather than anything real and legal. – DKNguyen Sep 11 '22 at 00:45
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    @DKNguyen: My understanding is that "right to restore" / "right to repair" is an argument for how the law should work, and how companies should behave. Not a description of what the current law actually is, unless special measures have been passed recently. Any argument based on that is moral justification for bending / breaking / ignoring laws. Not a sensible argument that they don't apply, only that they shouldn't be enforced in this case. (It's a reasonable argument if not taken too far, e.g. making stuff for your own personal use, not selling parts with logos you don't own.) – Peter Cordes Sep 11 '22 at 03:20
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    @PeterCordes I agree, however the question is asking about the legality. But even then, selling unlicensed parts with the logo stamped is one of those instances where I think it's pretty clear that the spirit and intent of the "right to restore" is being violated. I wouldn't blame any company that went after that. – DKNguyen Sep 11 '22 at 04:17
  • @DKNguyen: Agreed. Just saying that "right to repair" isn't a random phrase made up by some seller of these parts, it's a real point of debate. And Nate's comment suggests that some jurisdictions do have "right to repair" legislation on the books. (I doubt any such legislation would be written to allow selling "counterfeit" parts that include logos, even when the originals have been discontinued. (Near) identically shaped parts without logos, sure, that's the kind of thing that good legislation should allow.) – Peter Cordes Sep 11 '22 at 04:26
  • @PeterCordes My intent was less about the exact phrase itself and how it was presented by the the shop. Kind of like throwing "truth" into whatever you're saying as if it makes the phrase true in and of itself because of that, regardless of the facts or support. – DKNguyen Sep 11 '22 at 04:27
  • @DKNguyen: Indeed, that's why I'm agreeing with the main thrust of what you said, just nitpicking the wording of "that someone made up" and expanding on it. – Peter Cordes Sep 11 '22 at 04:29
  • @PeterCordes I understand. – DKNguyen Sep 11 '22 at 04:29
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    @PeterCordes Right to repair does not cover the logos usually - you have the right to have your car/boat/computer/... fixed to working condition. that's how the law is passed in most places. Aesthetic isn't usually covered. It's on the books most often for machinery (CArs, ships...) or part of first sale. – Trish Sep 11 '22 at 05:39
  • @DKNguyen if there is a right to repair, it generally only covers spare parts (e.g. in Germany there is a law that says that a car manufacturer has to make sure that spare parts for a car are available for a decade one decade after discontinuation), not branding or marks on the parts. they don't have to sell the parts, they have to make sure that someone does. Like by using standard components that fit multiple cars and releasing spec sheets. Large ships are very big in refurbishing of old parts, especially engines - there's a whole ecosystem of such repair companies. – Trish Sep 11 '22 at 05:41
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    @Trish But this question is precisely about branding, not just spare parts. And the fact that the original manufacturer has to make sure someone sells them is effectively licensing. – DKNguyen Sep 11 '22 at 05:45
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    @DKNguyen to which I said up in the answer under which conditions spare parts may have the branding: either Nintendo original parts or OEM parts with a license to mark them. Otherwise it's not carrying the mark properly, as it alludes it is such a Nintendo endorsed part when it really isn't - the core of what trademarks is for is origin of goods, – Trish Sep 11 '22 at 05:48
  • As long as we're being so detailed about the example, note that Nintendo Game Boys infamously use their trademarks as part of their copy protection; the product does not function as intended after some repairs unless the trademark is infringed, and Nintendo uses this to defeat right-to-repair rules, arguing that the trademark is more important than repair. See e.g. this video for a Game Boy-specific explanation. – Corbin Sep 12 '22 at 16:54
  • Flashing the boot-ROM would be copyright not trademark - they do use their Mark's encoding as the key, but the method to load and boot is copyrighted code. – Trish Sep 12 '22 at 17:25