Video games offer a melting pot of intellectual property: trademark law, copyright law, and even patent law all come together in a delicious mix of intangible property. However, not all video game franchises are equal. Few can claim the same level of longevity, success, and nostalgia as Nintendo’s Mario Brothers series.

Among the most popular titles of the franchise is Mario Kart, a game in which characters from the franchise race each other in go karts. The characters repeat catch phrases, seek out power ups (invincibility, speed, etc.) and cartoonish weapons (banana peels, turtle shells, etc.), all with the singular goal of being atop the podium at the end of race. Over its 25+ years of existence, the game has resulted in significant sales, widespread nostalgia, and, unsurprisingly, numerous attempts from others trying to make money off of the characters. But a recent lawsuit in Japan brought media exposure to what might have been the greatest attempt yet to profit off the franchise: real life go-karting in Mario Brothers costumes in the streets of Tokyo.

How fun is that? From what I can tell, riders aren’t allowed to throw things at each other (thanks a lot, safety laws), but this tour would still be great. The attraction even attracted professional race car drivers. You don’t even need to provide your own costume, they’ve got a ton for you to choose from.

Race car drivers weren’t the only people to discover the tour. Nintendo’s lawyers did, too. I’d like to imagine they participated at least once before suing them, if only under the pretense of “fact development.” Nintendo sued and ultimately prevailed on claims of copyright infringement. The company has to pay Nintendo 10 million yen (about US$89,000) and can no longer hand out Mario Brothers character costumes.

It’s hard to quibble with Nintendo’s actions here. The MariCar company intentionally distributed character costumes in order to attract customers.

But what are Mario Kart fans supposed to do now? Well, there will be an official Super Nintendo World opening at Universal Studios Japan ahead of the 2020 Tokyo Olympics. The theme park will include a Super Mario World featuring Bowser’s castle, Peach’s Castle, and, yes, a “Mario Kart attraction.”

But if you prefer the thrill of participating in likely infringing activities, you can check out the Australia-based MUSHROOM RALLY race event purportedly coming to Denver, soon. Participants will have a chance to battle it out in Las Vegas for the championship race. Ticket prices are yet to be determined and are limited to just 600 participants. I suggest you read the fine print on the refund policy though – just a hunch…

It is State Fair time again in Minnesota, so let’s examine the Tilt-a-Whirl brand.

The brand originated in Minnesota almost 90 years ago, after the amusement park ride was invented by Herbert Sellner of Faribault, Minnesota. Since 2011 the Tilt-a-Whirl brand and trademark has been owned by J&S Rides, d/b/a Larson International out of Plainview, Texas.

The first federal trademark registration for the Tilt-a-Whirl mark issued December 14, 1926, covering “merry-go-round or carrousel” in Int’l Class 28 (generally covering games and sporting goods), which sounds a little tame and perhaps even a bit misdescriptive, since the ride is well-known to cause nausea.

The second federal trademark registration for the Tilt-a-Whirl mark issued on December 5, 1995, covering more broadly “carnival and amusement park rides” in Int’l Class 22. This strikes me as an odd classification for this expensive piece of equipment, since Int’l Class 22 covers such unrelated and eclectic products as:

“Alpaca hair, bailing twine, bungee cords, clotheslines, down feathers, hammocks, laundry bags, plastic twist ties, human hair for stuffing and padding purposes, tents, unfitted spa covers, vehicle rescue apparatus, namely, rope cables used to affix between vehicles to pull a jammed or stuck door of one of the vehicles, and waterproof bags, namely, wet bags for temporary storage of wet and/or soiled cloth diapers.”

Perhaps it was incorrectly classified in Int’l Class 22, less for what the Tilt-a-Whirl is and does, and more for what you might need before or after experiencing a ride on one. I experienced my last ride a couple of years ago, so my daughter has been since, and is on her own this go round.

Here’s an interesting question to ponder: Why no coverage for Tilt-A-Whirl entertainment services? The registrations only cover the product, a very expensive piece of manufactured equipment, costing more than $300,000. So, the consumers of the Tilt-a-Whirl branded product are those who operate amusement parks and rides, not those who buy tickets to ride on them.

It seems to me that to create service mark rights in Int’l Class 41 under the Tilt-a-Whirl brand for “entertainment in the nature of an amusement park ride,” the brand owner would have to operate the equipment itself to provide the entertainment service, or at least license another to do so.

To the extent the brand owner thought this one through, I’m thinking the risk of controlling independent carnival operators as trademark licensees and the resulting potential liability for any operational mishaps far outweighs the additional benefit of owning technical service mark rights in the Tilt-a-Whirl brand and mark. But, what do you think?