Tragesser/Downham on augmented reality games: Gotta catch ’em all

November 30, 2016
downham-jordan-mug.jpg Downham
tragesser Tragesser

You have seen them. People, sometimes crowds of them, ambling around, heads bent over their phones without any clear aim for their paths or the real world around them. But these are not your everyday zombies addicted to their smartphones.

These hordes are playing Pokémon Go, an app by Niantic Inc. and Nintendo that was released this July. The app splashed with a peak of 45 million daily active users, according to data compiled by Soko Media.

About three-quarters of Pokémon Go players are between the ages of 18 and 34, and the success of the gaming app is partly due to nostalgia for Nintendo’s late-1990s television cartoon and card game about the quest to catch “pocket monsters” (aka Pokémon).

The app is also decidedly 2016: It is the first time an “augmented reality” game for smartphones has broken into the mainstream. These games require the player to move throughout the real world in order to explore the game’s universe as well. Niantic’s technology uses geo-location software and a phone’s camera to superimpose the 151 different Pokémon characters onto your surroundings. The game also features PokéStops where players can stock up on in-game resources and Pokémon Gyms where players use their Pokémon to battle other Pokémon. These hotspots are pinned to actual locations such as parks, stadiums, outdoor artwork or other points of interest like Monument Circle in downtown Indianapolis.

The game’s footprint is anywhere and everywhere, which opens up a world of both opportunity and liability for business and property owners.

pokemongoscreenshot-1col.jpg A “Clefairy” Pokémon appears at Monument Circle in Indianapolis. (Photo submitted)

Catching the wave

Assume a client has a community event or a marketing opportunity, such as a new museum exhibit, a community resources fair or a store opening. They can use Pokémon Go to drive foot traffic to their location by purchasing items within the game’s store by using a “Lure Module” to pin to the nearest PokéStop. By paying between $1 and $10 per 30-minute interval, the client can increase the number of Pokémon (and thus the number of Pokémon Go players) lured to the location.

Clients would probably want to advertise this Incense or Lure ahead of time, such as on social media. But it is still unclear how much tolerance Niantic and Nintendo will have for businesses taking advantage of Pokémon Go. The app’s Terms of Service forbids users from infringing on its intellectual property, including copyrights on the game software and trademarks for the game’s imagery as well as the developer’s name and logo. Nintendo has three pending applications to register the Pokémon Go logo as a trademark, and it already owns dozens of federal trademark registrations related to the Pokémon brand for use on everything from pajamas to video games to action figures.

While it doesn’t appear that Nintendo and Niantic have filed any temporary restraining orders or preliminary injunctions against coffee shops, libraries or museums that have jumped on the Pokémon Go publicity train, one should review the app’s Terms of Service and branding guidelines to avoid receiving a cease-and-desist letter.

Safety and liability issues

There are numerous instances of distracted Pokémon Go players causing or becoming victims of traffic accidents. PokéStops and Gyms can also be beacons for criminals looking for easy targets in players preoccupied with the app.

In the app’s Terms of Service, the owners disclaim all liability for property damage and personal injury. The app’s agreement is between the player and the company, but the game is played in the real world that is populated by people who have not downloaded the game and who have never agreed to the app’s Terms of Service. If a player is injured on your client’s property after being invited to catch Pokémon there, or the invited Pokémon Go players annoy the neighbors, the client may be left with exposure and risk.

Not in my backyard

Pokémon Go encourages players to explore. “If you are having trouble finding PokéStops or Gyms near you, please try visiting a local park or other interesting or historical locations in your community,” the app’s support website states.

Players downloading the app agree not to violate any law during gameplay, including trespass. Property owners would still have a right of action against players entering their backyards without permission, but there are people who wish Pokémon never appeared on the sidewalks outside their homes and storefronts. A handful of property owners have filed lawsuits against Niantic and Nintendo claiming that Pokémon Go creates a nuisance.

There is a simpler route. Clients who want to rid their properties of PokéStops and Gyms can request removal by filling out a form on the pokemongo.com official support page.

What’s next?

Niantic and other app developers, emboldened by Pokémon Go’s success, are not going away. And because augmented reality games are still fairly novel, other legal issues may be lurking, untested.

For example, Americans with Disabilities Act complainants have recently filed lawsuits against companies whose websites are not accessible for the blind or hearing-impaired. A digital game like Pokémon Go that requires movement and interaction with the real world presents multiple facets for compliance with the ADA.

It might be helpful to look at Europe where the reaction to Pokémon Go builds upon the region’s strong copyright protection laws, including a recent ruling by Sweden’s Supreme Court that severely restricted the “freedom of panorama,” or the allowable reproduction of public artwork in photography, in the digital realm. Although United States copyright law largely honors the freedom of panorama, a gallery or museum should consider the wishes of artists (and art patrons) before dropping a Lure that causes a Pikachu to perch on a priceless sculpture.•

This story has been corrected to state that with regard to using Pokémon Go to draw players' attention to a location, only Lures and Lure Models will have effects visible to other players.

Joel Tragesser is a partner at Quarles & Brady LLP practicing in trademark law and brand management, intellectual property licensing and business intellectual property litigation. He can be contacted at joel.tragesser@quarles.com. Jordan Downham is a junior associate at Quarles & Brady LLP and can be contacted at jordan.downham@quarles.com. The opinions expressed are those of the authors.