Nintendo has obtained a UK High Court injunction against six internet service providers in an effort to stop Switch games from being downloaded illegally.
The injunction means that six UK-based ISPs – BT, EE, Plusnet, Sky, TalkTalk and Virgin Media – must now block access to specific ROM portals for two years.
The injunction application – which is dated December 2nd, 2021 – sees Nintendo requesting a website blocking order under section 97A of the Copyright, Designs and Patents Act 1988. The six named ISPs are requested to block access to five domains: nsw2u.xyz, nsw2u.org, nsw2u.com, nsw2u.net and nswrom.com. These domains, Nintendo says, offer pirated Switch ROMs.
Nintendo believes these sites are commercial in nature due to the fact that they feature advertising which generates income based on page views and pop-up ads. Nintendo also voiced concerns over explicit adult content appearing during the download process, given the young nature of its main audience.
The company also claims that it has made repeated attempts to contact the owners of the sites via its solicitors in order to settle the matter out of court and that it believes all of the named sites are owned by the same entity.
In an order handed down by Justice Joanna Smith, it was acknowledged that the domains in question offered Nintendo-copyrighted content and that a large proportion of downloads came from the UK. Justice Smith found that the sites do indeed infringe Nintendo copyrights in the UK, and that the sites also infringe Nintendo’s trademark rights contrary to the Trade Marks Act 1994:
There is no plausible basis to suppose that the use of the marks is merely descriptive; they are being used to denote (falsely) the origin of the games and thereby to drive traffic to the websites for the purposes of making a profit. This is not in accordance with honest practice.
Judge Smith stated that awarding an injunction on the basis that it would be a “fair balance” between protecting Nintendo’s rights and those of the public – as well as allowing ISPs to continue trading fairly.