Copycat ‘Mario’ Apps Create Headaches for Nintendo - Fordham Intellectual Property, Media & Entertainment Law Journal
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Copycat ‘Mario’ Apps Create Headaches for Nintendo

Copycat ‘Mario’ Apps Create Headaches for Nintendo

Nintendo Co., the maker of wildly popular videogames such as Mario Bros, Donkey Kong, Pokemon, and Legend of Zelda, is not making games for smart phones. Other people are doing it… illegally.

Last week games similar or identical to Nintendo’s were available to download on Baidu’s store as well as Samsung’s Chinese app store.  One of the games called “Super Mario” was developed by Beijing Flyfish Technology Co., and featured several levels identical to those on the original Nintendo version. Similar games, as well as quiz apps and wallpapers featuring famous Nintendo characters, were also available on app platforms from Hong Kong and Japan.  Many of the games were removed from app stores and other platforms in the last week.

In an interview with Bloomberg News, Beijing Flyfish co-founder Zhu Jinbiao said that the games, which are free to play and make money from ads, are original enough that his company does not need a license agreement or other permissions from Nintendo. Jinbiao also pointed out that there are similar games available for personal computers.

Nintendo has not licensed its games for smartphones and tablets, instead focusing on developing games for its own consoles. Its latest console, the Wii U, flopped with consumers.  According to market analysts the casual gamer who made Nintendo the leader of a $93 billion games industry have abandoned the Wii U for cheap games that can be played on mobile devices, such as the Samsung Galaxy smartphone and the Apple Ipad. The Wii U is not popular with, and never meaningfully targeted, more dedicated gamers, who prefer the Sony PS4 or Microsoft’s Xbox One.

Nintendo’s absence from the mobile gaming environment has not gone unnoticed. Oasis Management, a Hong Kong based hedge fund that owns Nintendo shares, has the company’s intellectual property in its sights.

In a letter seen by The Wall Street Journal, Oasis Management founder Seth Fischer told Nintendo President Satoru Iwata that the company is “well placed to make an immediate entry into mobile” and that it sits atop “arguably the largest library of casual games.” According to Mr. Fischer, “[t]he same people who spent hours playing Super Mario, Donkey Kong, and Legend of Zelda as children are now a demographic whose engagement on the smartphone is valued by the market at well over $100 billion”.

As sales of proprietary consoles dwindle for Nintendo, the need to keep their intellectual property relevant has never been more critical. While the shift in business model would be significant and making mobile games carries risks of its own risks, Nintendo’s ability to make that choice is disappearing. If Nintendo wants to maintain any control of the future of a library of characters and worlds that it successfully introduced to a generation of children, then it needs to take charge of bringing them to the devices sitting in the pockets of the majority of Americans– or continue to let other people do it for them illegally.


Guillermo Farias

Guillermo Farias is a second year student at Fordham Law School. He is a IPLJ staff member. Originally from Mexico he studied history and political science at Vassar College. He worked at the Americas Division of Human Rights Watch for two years prior to law school.