Nintendo sues Genki over unofficial Switch 2 mock-ups - EU trade mark dispute: R+ vs Airplus

Nintendo sues Genki over unofficial Switch 2 mock-ups 

Japanese company Nintendo has filed a lawsuit against Genki, a well-known manufacturer of tech accessories, after it displayed unauthorised mock-ups of the highly awaited Nintendo Switch 2.

At the CES 2025 event in Las Vegas in early January, Genki displayed 3D-printed replicas of the Switch 2, along with some accessories and a promotional video, attracting attention from the media and fans and sparking speculation about a possible link to Nintendo. However, it wasn't until a week later that the Japanese company officially announced the console, followed by a full presentation on 2 April. In fact, just one day earlier, on 1 April, Genki had shown a render of the Nintendo Switch 2 labelled "Genki Glitch 2" and announced that the Glitch 2 accessories would be compatible with Nintendo's console.

As a result, Nintendo filed a lawsuit in the US District Court for the Central District of California on 2 May, alleging trade mark infringement, unfair competition and false advertising. Furthermore, Nintendo argued that Genki had used the registered trade marks "Nintendo Switch" and "Joy-Con" without authorization, which gave the false impression that its products were officially or implicitly endorsed by the Japanese company. For this reason, Nintendo is seeking an immediate injunction to stop Genki from marketing its products with references to its trade marks, as well as monetary compensation for the damages caused. However, Genki announced that it would continue with its business plans and defended the independence and originality of its products.

EU trade mark dispute: R+ vs Airplus

On 30 April, the General Court of the European Union (GCEU) ruled in case T-241/24 concerning the EU trade mark R+ owned by the Spanish company Repsol, SA.

In 2021, Repsol applied to the EUIPO to register the figurative EU trade mark no. 018606489 (R+), covering a wide range of goods and services, including technology products related to banking, payment and loyalty cards (class 9), advertising, promotional and loyalty programme management services (class 35), and financial and insurance services related to the use of electronic cards and discount offers in establishments (class 36). The German company AirPlus International opposed the application on the basis of its earlier registered trade marks in Classes 9, 35, 36 and 42, including the figurative mark AirPlus International (no. 2335057) and the word marks AirPlus International (no. 2335693), AirPlus Connect (no. 17475864) and AirPlus CardControl (no. 11077583).

Both the Opposition Division and the EUIPO Board of Appeal rejected the opposition, on the basis that there was no likelihood of confusion between the marks. In particular, they highlighted the significant visual differences between the signs, the limited impact of any conceptual and phonetic similarity on the likelihood of confusion and the high level of attention of a part of the relevant public. 

The German company appealed to the General Court (GC), which had to determine whether there was a likelihood of confusion between the marks at issue.

First, the GC noted that the marks shared some similarities, such as the use of the word 'plus' or the symbol '+', which could conceptually suggest something additional or enhanced. Phonetically, 'AirPlus' and 'R+' share a common syllable ('Plus'/'+'), which could lead to a slight similarity in pronunciation, particularly if the '+' symbol is read aloud as 'plus' in commercial contexts.

However, these similarities were considered insufficient by the Court because of the significant differences in the visual presentation. Repsol's mark consists of a black "R" followed by an orange "+" symbol, with a minimalist design and no additional verbal elements. In contrast, the AirPlus marks contained more complex word combinations (such as 'AirPlus International', 'AirPlus Connect' or 'AirPlus CardControl') and, in some cases, more elaborate visual features.

In addition, the Court pointed out that in case law related to financial services, the visual aspect of a mark is particularly relevant for consumers, who typically base their decisions on written information, such as contracts, brochures and documents, and not only on the sound of the names. As a result, the General Court upheld the decision of the Board of Appeal and confirmed that there was no sufficient likelihood of confusion to prevent registration of the trade mark applied for.