The problem stems from the subtle ways in which language develops. It’s instinctive for us to pluralise product names in everyday conversation (Oreos, Jet Skis) or turn them into verbs (to photoshop, to tarmac). But by doing so we begin to erode the trademark. Companies can, from the outset, encourage us to use an alternative generic name; sometimes this works (Nintendo pushing the term “games console”), sometimes it almost works (Xerox’s fondness for the term “photocopying”), and sometimes it fails miserably (who has ever referred to the once-trademarked trampoline as a “rebound tumbler”?)
Nintendo had to start calling their stuff “game consoles” so their name wouldn’t be genericized to refer to all consoles. Its not always about sueing others. Theres lots of avenues they need to protect and they knew they needed to defend it from the start.
Nintendo game out hot at the start when people were referring to other consoles as “Nintendos” even though they weren’t NES’ or SNES’. Theres plenty of precedence already then why they had to stop that immediately.
But how can they make a contract? Signing it would violate fair use exemption before that could be argued.
Corps are abusing a conflict within the laws, it’s not even a loophole, it’s just the unfortunate way the laws that protect each person/industry don’t agree.
But the rub is, under fair use you can’t profit from it though, so as soon as you accept payment, now they can sue you. So in the end, they win and get it for free regardless.