Infringer ordered to pay TWD370,000 to Nintendo for selling infringing game consoles pre-installed with pirated Nintendo games

　A woman surnamed Su (hereinafter “Su”) had been purchasing from Alibaba website (in China) more than 1,000 sets of 400-in-1 handheld game consoles at a low price of TWD150 each for resale at the price of TWD199 each on Shopee throughout March 2020.  Police online patrols found that these game consoles came with 26 pre-installed Nintendo games, for which Su was sentenced to three months in prison commutable to a fine payment for the offense of distributing the copies of a work that infringe upon another’s economic rights, and Su should also pay TWD379,100 to Nintendo therefor.  

　Nintendo’s attorney represented Nintendo to initiate a civil action against Su and claim damages in a total amount of TWD1.3752 million.  For Su’s economic right infringement, Nintendo sought damages payment of only TWD900,000 as opposed to the total value of TWD1.404 million involved in Su’s copyright infringement, which should be calculated by the unit price of each game, TWD450, multiplied by 120 consoles each sold with 26 Nintendo copyrighted game software pre-installed therein.  In addition to copyright infringement, Nintendo also sought damages payment of TWD475,200 for Su’s trademark infringement upon Nintendo’s 9 registered trademarks occurring in each game console, and the damages sought for each infringed trademark was in an amount equivalent to 200 times the retailing price of each infringing console, TWD264.  That is to say, Nintendo claimed damages against Su in a sum of TWD1.3752 million.  

　According to the judgment, the amount of damages to be awarded should be assessed separately with respect to Su’s trademark infringement and economic right infringement.  For trademark infringement, the damages awarded is TWD179,100, the amount calculated by 100 times the average retailing price of each infringing console, namely TWD199 for a total of 9 infringed trademarks, while the damages awarded for economic right infringement was TWD200,000.  Therefore, the total amount of damages awarded to Nintendo is TWD379,100.  This judgment is appealable.  (Released 2022.12.02) 
/CCS