Its-a me, your favorite intellectual property newsletter! This week, our BL Business Branding series explores the trademark issues surrounding unlicensed accessories for Nintendo’s upcoming release of the Switch 2.
Last week, famous videogame company Nintendo sued game accessory maker Genki for trademark infringement, unfair competition, and false advertising following Genki’s promotion of products related to Nintendo’s soon-to-be-released console. On January 16th, 2025, Nintendo made headlines by announcing it would release the Switch 2 in 2025, a new gaming console that follows the success of the company’s 2016 Switch. Although Switch 2 rumors had been swirling for months before the official announcement, nothing had been confirmed by Nintendo. But that did not stop Genki from attempting to get in early on the excitement surrounding the new release.
In late 2024 and early 2025, before the Switch 2 was officially announced by Nintendo, Genki claimed to have accessed an unreleased version of the new console and began promoting accessories on its website. The company even publicly attempted to connect with the CEO of GameStop to discuss Genki’s Switch 2 products on December 19, 2024. Then, on January 7, 2025, during the 2025 Consumer Electronics Show, Genki’s booth featured 3D-printed mockups of the still-unannounced Switch 2 that attendees and the media could interact with. The booth also featured a video claiming to be a render of the Switch 2 that featured Nintendo’s trademarks, which was later uploaded to Genki’s website. Genki’s cofounder and CEO Eddie Tsai also gave interviews with tech magazines seemingly confirming some technical details of the console.
In the days after the 2025 Consumer Electronics Show, Nintendo released a statement clarifying that the mockups Genki featured were unofficial and not connected to Nintendo. Although Genki released a statement that they did not possess a black market Switch 2, the company continued to promote its products for the console by making jokes about “infiltrating” Nintendo’s headquarters and “leaking” the renders at its conference booth.
Following Nintendo’s January 2025 announcement of the Switch 2, the company scheduled a “Switch 2 Nintendo Direct presentation” on April 2, 2025, to provide fans with additional details on the console. Later that same day, Genki hosted its own “Genki Direct” (also called “Genki Indirect”) to promote its Switch 2 accessories, which Nintendo claims featured similar visuals to its promotional materials and used its trademark when describing the products’ compatibility.
Nintendo claims that Genki’s marketing efforts infringe on Nintendo’s trademarks and trade dress by using them to promote its own, competing accessories for the Switch 2, as Nintendo does plan to sell accessories for the console itself. The company also alleges that Genki’s claim of early access to the new console, the mockups it produced at the 2025 Consumer Electronics Show, and its guarantees of product compatibility with the Switch 2, are meant to trick consumers into believing that Genki’s products are associated with and authorized by Nintendo.
Genki has not filed a response to the lawsuit as of this newsletter’s publication. The company did release a statement on X that it is “taking it seriously and working with legal counsel to respond thoughtfully.”
What Can Businesses Learn from This?
One of the main points of issue in the lawsuit is that Genki seemingly tried to officially tie its products back to Nintendo. By jumping the gun and announcing the accessories before the official Switch 2 announcement, creating 3D renders and mockups of the product for consumers to interact with featuring Nintendo’s trademarks, and guaranteeing compatibility, Nintendo alleges that Genki’s products intend to deceive buyers into believing they are authorized by the videogame giant to capitalize on its reputation. This, they argue, weakens Nintendo’s ability to control how their trademarks are used and the quality of the products associated with the company since Genki’s products are unlicensed.
Entering into a licensing agreement is one way for third-party accessory makers to avoid running afoul of trademark violations. By becoming an authorized licensee, companies can use agreed-upon trademarks in their products and marketing materials to advertise without fear of legal retribution. Licensing agreements can open products to new markets, create previously unavailable products for customers, and increase the value of a mark for trademark owners. By enforcing its trademark rights, Nintendo is taking action to keep its intellectual property from being diluted by unauthorized use, which could reduce the value of its licensing agreements that other companies have entered into to sell officially licensed, third-party products.
Have any questions about how trademark enforcement and licensing agreements can add value to your business? Contact our BL Trademark Team by reaching out to Seth Berenzweig at sberenzweig@berenzweiglaw.com today.