By Michael J. Smith

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Dear Readers: Well… summer is almost gone but Pokémon lives on. This week we are pleased to introduce our readers to Michael J. Smith whose skills as a trial lawyer include fascinating intellectual property challenges that real people face.  For more about Michael J. Smith see: http://www.thefowlerlawfirm.com/attorneys/michael-smith/ 

The Fowler Law Firm will send you an Electronic Alert like this one, designed to do two equally   important things: (1) Inform you about a challenge many others like you regularly ask that costs them money or forfeits an opportunity; and (2) Showcase the skills and resources of The Fowler Law Firm PC in our award-winning Practice Sections. 

Reply to this Electronic Alert to ask a question or make a comment in strictest confidence.  Have a great End of Summer 2016! 

You see them everywhere: heads down, faces illuminated by the glow of a smartphone, moving furtively from place to place, fingers sliding up across the screen over and over again, chasing and catching the elusive Charmanders, Bulbasaurs, Squirtles and of course, Pikachu! What are we talking about, you ask? Well, where have you been all summer!  Since its launch on July 6th, Pokémon Go® has become a worldwide phenomenon with over 20 million reported daily users in the United States alone! If you dare, visit the Capitol grounds in the evening and just watch the players moving from spot to spot trying to catch these mythical creatures in this “augmented reality” game.

As you wander around Austin, you see the Pokémon logo popping up everywhere from your favorite coffee shop (order the Pokéball Frappucino from Starbucks®), to the restaurant where you get your lunch, at the gym and at other retailers. Perhaps you’ve heard a cashier offer a free cookie or soda to Pokémon Go players. Travel to Australia, and you can order a Pokémon burger! And if you’ve listened to Austin radio, even a local car dealer was using his own version of the game at his car lot! Why are all of these business owners plastering Pokémon all over their businesses? Because over 75% of the players are ages 18-34 and everyone wants their business.

So you decide it’s time to jump on the bandwagon and ride the Pokémon wave to increase traffic to your business, which means more customers, which means more success! So with this new found energy and excitement, you:

Multiple-Choice Quiz

  1. Dive right in and immediately hire a talented local artist to paint giant Pokéballs and Pokémon characters across your store windows. Visit pokemon.com, copy some of the images of the fun little Pokémon and paste them into your current print and online advertising and herald yourself as the Official Pokémon Shop because you want everyone to know that you want the players as your newest customers;
  1. Buy some Pokémon Lures that attract wild Pokémon to your location so the players come flocking in to catch them, then take pictures and screenshots of the players with their catch and broadcast it across social media;
  1. Dig into some fascinating research including the terms of service and intellectual property policies of all three of the entities that control the Pokémon empire (Niantic, Nintendo, and the Pokémon Company) to determine what they all say about intellectual property ownership and rights; or
  1. Raid your now-raised child’s old closet, pull out that dusty box of Pokémon trading cards and Sell! Sell! Sell!

The safest bet to use Pokémon Go in your business without potential trouble is Number 2. Number 4 might be OK, but it could get you in hot water with your kids! And as for Number 3, such an endeavor is not for the faint of heart, but it may provide temporary relief from insomnia!

As for Number 2, some businesses have been successfully using Pokémon and social media to announce that they are a PokéStop or by sending out images of their customers and the Pokémon that have been caught in their store or restaurant. This all appears to fall within what is known as the “fair use” doctrine. And we certainly hope so, since even the United States Patent and Trademark Office sent a tweet inviting people to its campus to search for Pokémon!

So what is wrong with Number 1? Heck, we have seen it all over town, right? So it must be OK. Not true! As we said, three companies hold interest in all of the intellectual property (including copyrights and trademarks) associated with Pokémon Go. Those three companies are Niantic (the developer and distributor of the Pokémon Go game), Nintendo (which filed a trademark application for Pokémon Go in March 2016) and, of course, The Pokémon Company. And using someone else’s trademarks without permission is a BIG DEAL, especially if your use is for commercial gain. As the owner of the trademarks, they have the right to control use of those marks – including licensing them to others. For example, Nintendo and Niantic have signed a sponsorship deal with McDonald’s, so obviously they want to make sure that competitors of McDonald’s aren’t using the trademarks without permission.

Will one of these folks actually sue you if you choose Number 1? Maybe not, but it is entirely possible and well within their right to do so. Just ask Marcus Frasier who operated a Pokémon trading card site known as the Pokellector and was sued in 2014 for trademark infringement. Or the owner of a small Seattle café that hosted an annual “Unofficial Pokémon PAX Kickoff Party” every year until he was sued for using images of Pikachu and Snivy on his advertising posters. So if you want to use Pokémon logos or the logos of any other company to try and increase your business, tread carefully – the world of intellectual property infringement can be fraught with landmines for the unwary. But as always, feel free to contact your friends at The Fowler Law Firm to help you map a successful intellectual property strategy!

 The Fowler Law Firm Education Law Section is nationally ranked as a US News and World Reports Best Law Firm in the United States – Education Law- Tier 1 Designee.   For more information about our firm and our   community outreach please contact us at www.thefowlerlawfirm.com, or at (512) 441-1411.      

 Receipt of this Electronic Alert or printer-friendly version does not establish or constitute an attorney-client relationship.  This information is not intended as a substitute for careful review by legal counsel of your own choosing.  As with any legal issue, please consult your attorney with questions.