Copyright Infringement : Nintendo Video Game Software
Our Ref: L/JT/962397(KL)
Date : 13th January 1997
BY POST
Re: Copyright Infringement : Nintendo Video Game Software
We act for Nintendo Company Limited, the renowned manufacturers of, inter alia, a series of popular family video game consoles, namely, "Famicom", "Super Famicom", "Super NES", "Nintendo 64" and hand-held video game machines "Game Boy" ("the Video Game Consoles"). As such, our clients are also the proprietors of copyright subsisting in the design and outlook of the Video Game Consoles, the video game cartridges and in the Softwares.
It has come to our clients' attention that you have been selling and/or offering to sell device either in floppy disk or CD-ROM format for use in conjunction with our client's Video Game Consoles for the sole purpose of making copies of our clients' Softwares ("the Infringing Device"). Examples of the Infringing Device are a device known as "Game Doctor" (in various versions) for use in conjunction with our clients' products, namely, "Famicom" & "Super Famicom" and a new device know as ".....V64..." (transliterated as "Super Famicom Doctor V64 CD-ROM machine") for use in conjunction with our clients' latest product "Nintendo 64".
Our clients are not prepared to tolerate such blatant infringing activities. Indeed every exhaustive legal means will be employed by our clients without hesitation to eradicate such activities. Having said that, at this stage, our clients have no wish to subject you to costly litigation provided that :-
- you cease selling and/or offering to sell the Infringing Consoles forthwith;
- you execute in out clients' favour the enclosed Dead of Undertaking and return the same to us within SEVEN (7) days from the date hereof;
- you do within SEVEN (7) days from the signing of the Deed of Undertaking :-
(a) effect, by way of an affidavit/affirmation, frank and full disclosure of full details of the respective suppliers, dates, prices and quantities of such Infringing Device and exhibiting therero all relevant contracts, invoices and documents; and
(b) deliver up for destruction all Infringing Device in your possession, custody and control to us at Room 1901, 19th Floor, Wing shan Tower, 173 Des Voeux Road, Central, Hong Kong.
If you should choose to neglect our clients' aforesaid demand our clients will have no alternative but to take appropriate steps against you to protect their rights by way of both civil and criminal proceedings.
Under civil proceedings, you will be subjected to injunctions restraining you from further infringement and discovery orders requiring you to release information and documents concerning the sales of the Infringing Device. Needless to say you will also be subjected to payment of legal costs and damages which may well exceed the amount you have to pay at this stage.
If a complaint is filed with the Customs & Excise Department, your company premises will also be subjected to pay at this stage.
In your interest, we would suggest that you forthwith seek legal advice. Please also note the aforesaid time limit for compliance of our client's proposed terms.
Yours faithfully,
TSANG & SHIN
encl.
c.c.client
KL/
[let3/ntd-shp1]
TO : NINTENDO COMPANY LIMITED of 60, Fukuine Kamitakamatsu-cho, Higashiyama-ku, Kyoto-city, Kyoto-Prefecture, Japan.
U N D E R T A K I N G
IN CONSIDERATION of NINTENDO COMPANY LIMITED (hereinafter referred to as "NINTENDO") forbearing to take further action against the undersigned for infringement of NINTENDO's copyright subsisting in the video game software to be used with the video game consoles, namely "FAMICOM", "SUPER FAMICOM", "SUPER NES" and "NINTENDO 64" (collectively referred to as "the Works") created, manufactured and marketed by NINTENDO throughout the world from time to time :-
- The undersigned hereby acknowledges that NINTENDO is the owner of the copyright subsisting in the video game softwares to be used with the video game consoles "FAMICOM", "SUPER FAMICOM", "SUPER NES" and "NINTENDO 64" and contained in those video game cartridges manufactured and marketed by NINTENDO thoughout the world from time to time.
- The undersigned hereby admits and confirms that it has sold and/or offered to sell infringin devices which are catered for copying purpose ("the Infringing Device") and copied software whilst the copied software are identical/ substantial reproductions of the Works owned by NINTENDO without obtaining licence or any express/implied authorization from NINTENDO for sale and commercial purpose.
- The undersigned hereby undertakes whether acting by its director(s) or officer(s) or servant(s) or employee(s) or agent(s) as the case may be, or otherwise howsoever will not at any time hereinafter, manufacture, distribute, retail, sell, advertise, or offer to manufacture, distribute, retail, sell or advertise or deal in or with in any manner whatsoever including but not limited to the Infringing Device together with the copied software, if any, or cause, enable or assist others to infringe the copyright ownership subsisting in the Works owned by NINTENDO or its assignes.
- The undersigned shall deliver up to NINTENDO's solicitors Messrs. Tsang & Shin at Room 1901, 19th Floor, Wing Shan Tower, 173 Des Voeux Road, Central, Hong Kong all stocks of the Infringing Device together with any copied software within its possession, custody, power and control within SEVEN (7) days from the date hereof AND a Statutory Declaration/Affirmation made by one of its proprietor(s) or director(s) as the case may be setting forth so far is known to him/her or is available to him/her from company records the full names and address off all persons, firms or companies from whom it has obtained the Infringing Goods and to whom it has supplied the Infringing Device AND to disclose in the Statutory Declaration/ Affirmation full details of the respective dates, prices and quantities of such Infringing Device and exhibiting thereto all relevant contracts, invoices and other documents and confirming that the undersigned no longer has in its possession, custody, power or control any of the Infringing Device or any part thereof.
- The undersigned hereby further undertakes that should the undersigned act in breach of the terms of the Undertaking herein, the undersigned will indemnify and keep NINTENDO indemnified from all losses, damages, costs and expenses whatsoever which NINTENDO may suffer, sustain or incur by reason of such breach whereby for the purpose of assessing the aforesaid damages, the report submitted by the Nintendo's auditor shall be final and conclusive.
Dated this day of 1997.
IN WITNESS WHEREOF the party named below have executed this Deed the day and year above written.
SIGNED SEALED & DELIVERED by
in the presence of :-
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