Copyright Kart Collision Over Super Mario

Copyright Kart Collision Over Super Mario

By: Ryan Smith, May 2019

Nintendo is upset that tourists are dressing up in onesies to look like Nintendo
characters while driving through downtown Tokyo in go-karts and committing hit-andrun
accidents to the detriment of the Nintendo brand.

But I’m getting ahead of myself.

Japan hosted 6 million tourists in 2011. The annual number of visitors to Japan pre-
2011 was similar or lower than the 2011 number. In 2018, 31 million tourists visited
Japan. Among the many sights that Tokyo offers, such as the various ancient and
modern buildings and cultural attractions, the most unorthodox and increasingly popular
way to see the city is to dress up as Super Mario or Yoshi and to drive around the city in
a go-kart.

The law permits go-karts to be driven on the streets of Tokyo, although it is as rare a
sight as spotting a Yeti. Most of the locals wouldn’t dream of driving in the big city using
a go-kart. The law also does not require the operator of a go-kart to wear a helmet or a
seatbelt. They even offer night tours. Yet even though the law permits it, one can
imagine it would not be wise to drive around on a go-kart in one the world’s busiest
cities, let alone without a seatbelt or helmet.

Nevertheless a company called MariCar came into existence to offer a service it
presciently determined would have demand - dressing up as Nintendo characters and
whipping around downtown Tokyo in go-karts.

The MariCar company posted pictures and videos of happy tourists smiling in costume
as they raced through the streets of Tokyo. You can find countless videos on YouTube
of satisfied tourists dressed up like Luigi revving their engines in anticipation of the
green light all the while giving the thumbs-up sign.

Then the accidents started to happen.

A person bedecked as Princess Peach hopped the curb, swerved along the sidewalk,
and ultimately crashed through the wall of a police station. Donkey Kong smashed into
the side of a fish and chips shop. Super Mario committed a hit and run on a cyclist.
Fortunately the victim was able to identify Super Mario and he was charged. Super
Mario later admitted the charges against him.

After many more accidents were reported, calls began to ban the go-karts from Tokyo
streets. Then, due to the negative attention the popular Nintendo characters were
garnering for causing accidents in go-karts, Nintendo got involved and sued the go-kart
company.

Nintendo sued MariCar for ¥10,000,000 (CDN$120,000). Nintendo claimed that
MariCar was committing copyright infringement when it created costumes of Nintendo
characters and when it posted pictures and videos of its go-kart customers wearing the
costumes. Nintendo claimed that MariCar’s use of Nintendo costumes and the
connection between the service and the popular video game Mario Kart were damaging
the Nintendo brand.

The Tokyo District Court found MariCar liable for copyright infringement and awarded
Nintendo ¥10,000,000. MariCar didn’t have much of a chance to win this case, as it
publicly took advantage of the attention its services received through the correlation
between its services and the Nintendo video game Mario Kart. In fact many
businesses, whether knowingly or ignorantly, make use of well-known characters whom
copyright law protects to draw attention to the products and services of their business.

Consequently MariCar has removed all Nintendo-related intellectual property from its
services, i.e. costumes, and pictures and videos. You can no longer find any Nintendo
products on its website www.maricar.com. They now advertise their services with the
tagline “Real Life Superhero Go-Karting.” You can now find pictures of people dressed
up like Spiderman, Superman, Pikachu, and the Minions flying through the Tokyo
streets in go-karts.

It may only be a matter of time before Pikachu and Batman find themselves in their own
accidents. But until that happens, it appears that go-karting through the streets of
Tokyo remains completely legal. So if this is your cup of tea, there aren’t many
comparable ways to take in the Tokyo Tower and Shibuya in the same sitting.

* * * * *

Ryan K. Smith is a Lawyer and Trademark Agent at Feltmate Delibato Heagle LLP. He
is a corporate and commercial lawyer with expertise in intellectual property law. Ryan is
the author of the book Intellectual Property Law in Commercial Transactions published
by Thomson Reuters. You can reach Mr. Smith at (905) 287-2215 and
rsmith@fdhlawyers.com. This article represents general information only and does not
constitute legal or other professional advice or an opinion of any kind.