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John B.
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Lawrence E. Laubscher, Jr.

 

Ian D. Titley

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Legal Issues to Watch for When Using Pokemon Go to Promote Your Business

Wednesday, July 20th, 2016

Would your business like to use the Pokemon Go craze to attract customers? What legal issues do you need to watch out for when doing so?

Is it OK to make posts on Facebook and Instagram and to send tweets about Pokemon Go creatures found at your business?

Some businesses go further. The Center of the Universe Brewing Company in Ashland is running Pokemon promotions and buying lures in Pokemon Go to attract customers. In the game, you can purchase lures, which spur the creation of Pokemon creatures in the area. That attracts players.

Going further yet, McDonalds is forming an advertising partnership with Niantic, the maker of Pokemon Go, which reportedly will make McDonalds in Japan into Pokemon gyms. Gyms are places where Pokemon Go players gather to do virtual battle.

If your business wants to tap into the craze, what could go wrong?

Bad Places for Kids

It may be unwise to promote Pokemon Go if your business is only for adults (such as a bar) or if you have an attractive nuisance on your premises.

Children play Pokemon Go. If your business becomes a gaming hub, children will show up, often unaccompanied by adults.

I was surprised to see the local brewpub promoting itself with the game. Perhaps it’s accustomed to having children on its premises.

Also consider whether your business has an attractive nuisance on its premises. That’s something that entices children but threatens their safety. Common examples are swimming pools, fountains, man-made ponds and lakes, and rooftops.

A property owner has a duty to provide some protection against harm to children drawn to an attractive nuisance on its premises. If you have one, using Pokemon Go to promote your business might increase you legal risk. Indeed, consider prohibiting game play in such places.

Potential Intellectual Property Problems

Could you get into intellectual property infringement problems with your Pokemon Go promotion?

In theory, yes. There are many actions Niantic could sue over. The hard part is figuring out where it draws the line.

I attempted to contact Niantic by email about its intellectual property policies, and got no response by the press deadline.

The game’s terms of service state Niantic considers all of its characters and icons to be its intellectual property, along with the name of the game itself. It warns it can terminate your Pokemon Go account because of any usage of those things for a commercial purpose.

Yet, Niantic appears to be tolerating if not encouraging some commercial promotion. It retweeted a tweet from the University of Nebraska in which the school opened up its football stadium to Pokemon Go players, to boost interest in its football program. It also retweeted a tweet from the Dallas Mavericks in which the team showed players acquired in free agency alongside Pokemon Go characters, to create excitement for the next season.

Heck, in the “wouldn’t it be ironic?” department, the U.S. Patent and Trademark Office put out a tweet enticing people to look for creatures on its campus. So hopefully doing that isn’t an intellectual property problem.

Steer clear of any mention of Pokemon Go that might create an appearance that your business has a sponsorship, endorsement or other affiliation relationship with Niantic. Avoid using words such as “official,” “authorized,” or “headquarters” to describe Pokemon Go activity at your business.

Because Niantic is signing up corporate promotional partners, expect it to take legal action if your business creates a false appearance of being a partner.

Instead, stick to what trademark law calls “nominative fair use.” Under this doctrine, it’s okay to use someone else’s trademark (usually a business, product or service name) without permission when doing so is necessary to send a legal message about your business.

For example, if you are listing your used Honda automobile on Craigslist, it’s okay to identify it as a Honda.

You probably won’t encounter a problem by putting out a Facebook or Instagram post or tweet of a screenshot of a Pokemon character captured in your store with a message saying something like “Look what we caught here!” or “Our lures are drawing them in.”

Aside from such game screenshots, avoid using any graphics taken from the game in your visual advertising.

Finally, Niantic obviously has no problem with people using the social-media hashtag #PokemonGo, so using it in your social-media posts shouldn’t be a problem unless the post otherwise creates a false appearance of a sponsorship or other affiliation with Niantic or the game.

Go catch ‘em all! – customers, that is.

Written on July 19, 2016

by John B. Farmer

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