Pokémon Go Lures and Incense Could Attract Trademark and Copyright Lawsuits

FLB Law      Jul. 22, 2016

If you’re looking for an explanation of the phenomenal success of the Pokémon Go craze, I got nothin’. If you want some thoughts on where to draw the line in promoting your business in connection with the game, read on.

I often tell clients that my job is to be a “professional paranoid;” to think of problems that might arise and try to keep them from arising or avoid damage from them. That Spidey Sense for trouble gets used often, and so it pretty much stays on all the time. When I read an article this morning about small businesses capitalizing on the increased foot traffic they receive by virtue of being a Pokéstop in the immensely popular Pokémon Go virtual reality game, I first thought, “Well, isn’t that nice?” Then the tingle arrived, the paranoia fired up and I thought, “Oh geez, I hope these businesses are not actively using the Pokémon Go name or characters to advertise the business itself.”

Pokémon has been a hugely successful property for Nintendo and its partners for twenty years. With that success comes great asset value in the copyrighted characters and the trademarks related to the game, television series and numerous other products. In addition to registered U.S. trademarks relating to video games and software, Nintendo owns registrations for “Pokémon” or Pokémon-related marks covering publications (e.g. books), playing and trading cards, games, clothing, hats, cups/bowls/plates, and much more. This includes three pending applications for registration of the trademark Pokémon Go itself.

The new Pokémon Go game allows players to collect Pokémon at real world locations indicated by the game (Pokéstops) by pointing their device’s camera at the location, where it appears in the on-screen view that the Pokémon is present. Stories abound of these locations including retail stores, restaurants, private yards, etc. While many find the influx of Pokémon Go players hunting Pokémon annoying, others long to become Pokéstops or just have the Pokémon come to them while they laze on the sofa. That’s where “incense” and “lures” come in. The use of incense (which, of course you can purchase in the game with real money) may attract Pokémon to your location for 30 minutes. Lures (also available in exchange for real shekels) work the same way, but only at a location that is already a Pokéstop. (I feel worse for understanding all of this, but if you want to know a little more, click here.)

For businesses considering ways to profit from the presence of Pokémon Go players, the simple message here should be to ensure that if you do lure Pokémon (and thereby Pokémon Go players) to your business location you do not use the words Pokémon or Pokémon Go, or any graphical representations of Pokémon characters or objects to promote products, services, events, or specials being held at your business. The Trademark Act (also known as the Lanham Act) prevents anyone, without authorization, from taking any action that would erroneously suggest an association between their business, product or service and the owner of a registered trademark or the products truly identified by the registered mark. A violation of the Lanham Act can be addressed in a federal lawsuit for unfair competition and trademark infringement.

Similarly, the Copyright Act reserves for the copyright owner the exclusive right to reproduce, publish or publicly display their copyrighted works. The Copyright Act provides statutory damages to a winning plaintiff of up to $30,000 per infringement – $150,000 if that infringement is deemed willful.

The takeaway here is simple. As a business owner, if you hope to attract Pokémon Go foot traffic, play within the rules of the game, through the game. Utilize the lures and incense as intended, but don’t directly attempt to associate yourself with the Pokémon name or characters themselves, unless you first obtain permission from Nintendo and any other necessary parties. While a full-blown lawsuit resulting from an unauthorized Pokémon happy hour flier may not be highly likely, these basic guidelines could help you avoid a big legal headache.

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