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Say that I write a computer game that involves a number of characters. I choose to trademark some of the characters I think are more marketable, and copyright my game. To my surprise, fans discover that it is possible to glitch the game in such a way that a new character is created (perhaps it's a Frankenstein-type character of other parts). It rises in popularity and becomes fairly recognizable.

Does the fact that it was an unintentional creation still mean it is eligible for trademark or copyright protection?

For reference, this sort of thing happened in Pokémon Red Version and Pokémon Blue Version. It is possible to glitch the game to create what appears to be a Pokémon called "MissingNo.", which was clearly unintentional. It became pretty popular and is rather recognizable among those who played the games. To have a more specific version of the question, could Nintendo theoretically choose to trademark "MissingNo."? Is it protected under copyright?

  • Have you also considered copyright issues? Or are you just specifically interested in trademarks? – Viktor Mar 12 '16 at 2:20
  • @Viktor I thought that copyright might be too broad, but sure, I'm interested in copyright too. – Thunderforge Mar 12 '16 at 4:42
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Ability to register a trademark is not affected by the way the mark was created or discovered. If a mark is otherwise registrable, the fact that it was created by accident doesn't preclude that registration.

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  • I'm guessing that your answer is the same, but per the comments, I've broadened my question to include copyright as well as trademark. – Thunderforge Mar 12 '16 at 4:44
  • Not the same; copyright requires that there is some creative effort involved in the creation. – gnasher729 Mar 15 '16 at 15:21

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