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HOW BUSINESSES CAN USE POKÉMON GO TO ATTRACT CUSTOMERS WITHOUT VIOLATING INTELLECTUAL PROPERTY LAWS

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Since launching in the United States earlier this month, Pokémon Go has quickly grown to become the biggest mobile game in US history, with total daily users reaching peaks of over 20 million. In an effort to capitalize on the Pokémon Go craze, many businesses are looking to use the game to attract more customers. Although it may seem tempting to incorporate Pokémon or Pokémon Go imagery into promotions and advertisements, business owners must consider the intellectual property rights associated with the game’s logo, name and characters in order to avoid potential liability for trademark or copyright infringement.

Pokémon Go was developed by San Francisco-based software development company, Niantic, for iOS and Android devices. The game is free to download and play, but offers in-app purchases for certain items. Using a device’s GPS and camera features, the game sends players on a physical scavenger hunt to locate virtual creatures. The game allows users to capture, battle and train these creatures, known as Pokémon, that appear on phone screens as if they were in the real world.

The company filed a trademark for the “Pokémon Go” logo in March 2016, and holds trademarks internationally in the European Union, Japan, and most recently, China. Additionally, the Pokémon Company, Nintendo, Creatures Inc., and GAME FREAK inc. jointly own all copyrights to Pokémon images and Pokémon character names, which have been protected since the franchise’s inception in 1995.

Under Federal law, any unauthorized use of Pokémon trademarks or copyrights, including reproduction of the logos or characters in any advertisements or promotional material, may result in legal liability for infringement. Without express permission or a proper licensing agreement from the appropriate trademark or copyright owners, businesses must exercise caution and refrain from using logos, images or text that belong to the Pokémon franchise.

Fortunately, there are a variety of alternatives that will allow your company to take advantage of the popularity of Pokémon Go, without exposure to potential liability. In addition to referencing the game in social media, businesses can also offer discounts to players and order Pokémon merchandise from a licensed supplier for giveaways. In some instances, suppliers may be authorized to customize Pokémon merchandise for your business. Additionally, if your location is near a Pokéstop, a player can use a “Lure Module” that will continuously attract Pokémon to the area for 30 minutes. Players are able to see if a Pokéstop is activated by a Lure, and often crowd such locations for the duration of the event. Lure modules can be purchased in the app, where payment is exchanged for “Pokécoins.”

In an age of smartphone-based entertainment, the creators of Pokémon Go have managed to recapture the nostalgia of the 1990s franchise through the cutting edge technology of augmented reality. As a result, many businesses are responding with new and innovative forms of advertising that manage to attract customers without running the risk of exposure to potential trademark or copyright liability.

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