Shop with good blank NES cartridge shells

[rainwarrior]

Why do modern third-party shells attempt to reproduce Nintendo's shell shape rather than make something distinctive the way pre-1997 unlicensed games did?

This seems obvious to me...

Making a mould and selling cartridge shells is a commercial venture with a significant financial risk. Do you think more or less people would buy a shell that looks close to Nintendo ones versus a shape that works but is unique? How do you think the ~four people who have been willing to invest thousands of dollars into a project like this would answer that question?

[tepples]

That depends on whether a console maker is likely to try suing companies making replica shells and/or unlicensed game makers using said shells for trademark infringement even after design patent expiration. Has any console maker done so?

[rainwarrior]

So your question is now: "Why aren't shell makers avoiding a non-existent lawsuit problem by creating a less appealing product?"

[DRW]

Why do modern third-party shells attempt to reproduce Nintendo's shell shape rather than make something distinctive the way pre-1997 unlicensed games did?

Because the official Nintendo shells are the ones that are recognized as NES games by the people while individually-looking shells are associated with crappy stuff.

That depends on whether a console maker is likely to try suing companies making replica shells and/or unlicensed game makers using said shells for trademark infringement even after design patent expiration.

That's a totally different issue from your first question. Your first question was basically: "Why do the publishers try to replicate something existing instead of coming up with something individual?" That question has been answered.

Your second question is: "Why do the publishers try to replicate something existing even if this might run into copyright problems?"

This can be answered quite easily as well: So far, Nintendo hasn't sued or threatened any publisher who uses those shells.
RetroUSB has been around for years and they still sell cartridges with this shape, so why should they or any other publisher change this?

Obviously, Nintendo doesn't give a shit about reproducing their shells, despite the fact that their lawyers are immediately at work if someone uses their actual creative work, like trying to sell a book with Nintendo artworks or using the likeness of "Super Mario" sprites in an Atari game.

This:

That depends on whether a console maker is likely to try suing companies making replica shells

has been tested in real life and it has been proven that being sued for shell reproduction is not likely.

[koitsu]

This:

That depends on whether a console maker is likely to try suing companies making replica shells

has been tested in real life and it has been proven that being sued for shell reproduction is not likely.

Except every NES cartridge shell has "PAT.PENDING" (patent pending) on it. This even includes games re-released (ex. Metroid, Zelda, etc. -- I checked as recent as carts released in 1991). So the question then becomes: did Nintendo's patent get approved? If so, such lawsuits would be legitimate and difficult to defend against in court (ignoring the fact such a lawsuit would destroy financially whoever the defendant was regardless of outcome), given patent infringement. If not, it'd be unlikely and the risks would only be those already mentioned by rainwarrior.

I get the impression the patent was not approved.

Edit: it looks like they may in fact have been approved. I can't exactly tell. I found the following patents which are definitely for NES cartridge cases, but I can't tell if they were approved or not -- Edit: the "D" stands for "Design", i.e. a design patent.

* D312,081 -- Cartridge for game machine -- April 17, 1987; "Notice: The portion of the term of this patent subsequent to February 2, 2002 has been disclaimed."
* D294,020 -- Cartridge for game machine -- October 7, 1985
* D292,399 -- Cartridge for game machine -- October 27, 1986

Off-topic find: patent 4,844,465 is quite interesting: it's a Famicom-cart-to-NES adapter.

[DRW]

If so, such lawsuits would be legitimate and difficult to defend against in court

Sure they would. But as I said: There have been tons of commercial homebrew games. And despite Nintendo's policy of sending lawyers after anyone who tries to make money with any of Nintendo's copyrighted material, there has never been a case where Nintendo sued or even warned specifically because of the shape of a cartridge's shell. So, why should we design different shells based on the fear that they might start suing now?

[rainwarrior]

The past existence of patents on NES cartridges are entirely irrelevant. They'd all have expired already. You can't sue someone for infringing an expired patent. The whole existence of the NES is owed to this fact (i.e. the expiry of the patent on the MOS 6502).

[koitsu]

If so, such lawsuits would be legitimate and difficult to defend against in court

Sure they would. But as I said: There have been tons of commercial homebrew games. And despite Nintendo's policy of sending lawyers after anyone who tries to make money with any of Nintendo's copyrighted material, there has never been a case where Nintendo sued or even warned specifically because of the shape of a cartridge's shell. So, why should we design different shells based on the fear that they might start suing now?

They probably wouldn't (re: "might start suing now"), as there'd be no real reason to (especially since even their latest "NES" *cough* doesn't use cartridges). Speaking purely historically: if you examine all the cartridge shells made by third-parties, you'll see they're all physically different than the official Nintendo ones (identical X/Y/Z dimensions, but definitively "tweaked" designs). This absolutely was done to avoid potential lawsuits -- the mentality is "it's better to be safe than sorry" (and this is logic that really can't be denied or rejected).

The same tactic is still used today, re: third-party products having slightly different dimensions or tweaks compared to what the original patent designed depicts. Even cheap Asian clone products (ex. joypads) do this for the exact same reason.

[koitsu]

The past existence of patents on NES cartridges are entirely irrelevant. They'd all have expired already. You can't sue someone for infringing an expired patent. The whole existence of the NES is owed to this fact (i.e. the expiry of the patent on the MOS 6502).

I was under the impression that US patents lasted 30 years. I was wrong. Turns out it's:

* Utility patents: 20 years for anything past mid-1995; 17 or 20 years of pre-mid-1995 (conditionally; but the longer term is what's chosen)
* Design patents: 15 years for anything past mid-2015; 14 years for anything pre-mid-2015.

Possibly what I was thinking of was copyright duration, which can be substantially longer (all depending on circumstances).

So yes, you're correct, it's irrelevant.

[DRW]

Speaking purely historically: if you examine all the cartridge shells made by third-parties, you'll see they're all physically different than the official Nintendo ones (identical X/Y/Z dimensions, but definitively "tweaked" designs). This absolutely was done to avoid potential lawsuits -- the mentality is "it's better to be safe than sorry" (and this is logic that really can't be denied or rejected).

But that was back when the NES was still in production and when actual licensed companies created games for it.

A homebrew, as commercial as it might be, is not the same situation. Cash-In Culture releasing "Haunted Halloween" is not the same situation as Camerica releasing "Ultimate Stuntman" at a time when Capcom, Konami and Nintendo itself released NES games.

So, no matter what the actual legal stance on that patent might be: You cannot compare the current NES homebrew situation with the situation of unlicensed companies from the 80s and 90s. That's the reason why today's publishers dare to use officially-looking shells and get away with it.

[rainwarrior]

Copyright might actually be relevant, it's merely patents that aren't. The patents would have been relevant during the commercial era.

Some things, like clothes, aren't traditionally subject to copyright. I don't know where cartridge shells fall on this spectrum. Maybe it falls under trade dress?

I'm also not quite certain about the legal distinction between an "exact" copy of something and an inexact copy, but it's quite true that imitation stuff tends to change at least some minor detail. An identical copy might even be considered counterfeit/forgery and be subject to different laws? I don't know. Copying the "Nintendo" logo would be a violation of trademark, certainly.

All of the currently produced shells I'm aware of have some cosmetic differences with the original Nintendo design (e.g. a flat back, or the little notch on the aliexpress/piko ones).

At any rate, it's not like there's anything secret going on here. Everybody making cartridge shells seems to be doing so openly with no expectation of legal repercussions.

[tepples]

Trade dress is what I was thinking. (I meant "trademark" in a broad sense, including nontraditional marks and trade dress.) But on second thought, after several years of Battle Kid, any trade dress claims should be estopped by laches, making it almost certainly a non-issue.

[Sik]

Even cheap Asian clone products (ex. joypads) do this for the exact same reason.

After seeing many cheap Playstation-shaped PC controllers that only change the brand and use numbers instead of symbols (but practically identical-looking otherwise), I can safely tell you this is not true.

[koitsu]

Even cheap Asian clone products (ex. joypads) do this for the exact same reason.

After seeing many cheap Playstation-shaped PC controllers that only change the brand and use numbers instead of symbols (but practically identical-looking otherwise), I can safely tell you this is not true.

You know what really chaps my ass around here? When people fire off little one-liners like this without really thinking about the bigger picture. It's also convenient that you chose to remove the preceding sentence from the quote. So, here's your long-winded "are you fucking serious?" response:

You're welcome to read US patents 5551693, 5716274, and 5853326 for specifics, including the depicting figures/images. (Note the years of the patents, and re: my above convo with rainwarrior). Then ask yourself "I wonder why they changed the buttons to have numbers?" The same goes for relocation of some of the support/intermediary buttons. Go look at the Logitech F310; is it the same? (Answer: no; there are several design aspects changed for that exact reason. Is it inspired by the PS controller? Absolutely. Worthy of lawsuit? I imagine Sony would say "Eh, not worth the effort, it's different enough")

While thinking about all that, think about the fact that there are companies in Asia (doesn't matter which country, but Hong Kong, China, Taiwan, and Singapore have prolific problems) who simply don't give a shit if they literally clone something and sell it. These grey market companies operate essentially "in the red" (i.e. high risk) all the time, with the hopes that they can make enough profit before they're discovered + potentially sued (they disappear when even slight hints of this happens). Some others continue to exist but cease manufacturing/sales of products. Others might pay certain people off (varies). And there is no denying any of this either -- the entire 90s console era is rife with this! Accessories, console copiers, whatever.

Then there's the possibility that some just do it because there isn't a history of the larger behemoth companies doing anything about clone products, i.e. "I'll take the risk because history has shown they don't care". But anyone working on the legal side would tell them to, bare minimum, make some kind of minor alteration to the design (even if just cosmetic) to try and minimise any chance of legal repercussion. I can talk about companies getting busted for this type of thing repeatedly (commonly for console copiers in the 90s) -- they come back on the market under a different name (run often by the same people) within a year, sometimes less.

I know that at least in Japan the behemoths tend to be more aggressive about ensuring their products don't get cloned (esp. things that are hot on the market at the time); many of these have presence in some of the other Asian countries I mentioned but it's more precarious (and time consuming) to try and track down companies making clone products. You ever been to Shenzhen? The electronic markets there (not even discussing street market stuff -- BTW those are also prevalent in South Korea) sell literally *whatever*. I can't imagine Sony in China sitting around a boardroom going "Hey. HEY. This is serious business. There's someone selling cloned Playstation controllers at SEGP. Get the cops ASAP." Can you? If the same company making those clones started showing up in other countries native (incl. the US), suddenly that might become a real conversation.

[Myask]

This:

That depends on whether a console maker is likely to try suing companies making replica shells

has been tested in real life and it has been proven that being sued for shell reproduction is not likely.

Except every NES cartridge shell has "PAT.PENDING" (patent pending) on it. This even includes games re-released (ex. Metroid, Zelda, etc. -- I checked as recent as carts released in 1991). So the question then becomes: did Nintendo's patent get approved? If so, such lawsuits would be legitimate and difficult to defend against in court (ignoring the fact such a lawsuit would destroy financially whoever the defendant was regardless of outcome), given patent infringement. If not, it'd be unlikely and the risks would only be those already mentioned by rainwarrior.

I get the impression the patent was not approved.

Edit: it looks like they may in fact have been approved. I can't exactly tell. I found the following patents which are definitely for NES cartridge cases, but I can't tell if they were approved or not -- Edit: the "D" stands for "Design", i.e. a design patent.

* D312,081 -- Cartridge for game machine -- April 17, 1987; "Notice: The portion of the term of this patent subsequent to February 2, 2002 has been disclaimed."
* D294,020 -- Cartridge for game machine -- October 7, 1985
* D292,399 -- Cartridge for game machine -- October 27, 1986

Off-topic find: patent 4,844,465 is quite interesting: it's a Famicom-cart-to-NES adapter.

http://wiki.nesdev.com/w/index.php/Patents (we have a page for this! I didn't know that!)