Pokémon GO, the augmented reality gaming sensation from Niantic Inc., has already proven to be a worldwide smash hit with gamers all over the world. Millions of aspiring Pokémon masters have taken to the streets to catch any Pokémon they may run into, and to collect some free goodies from their local PokeStops. Predictably, this kind of popularity will draw imitators looking to get in on the craze, but is Nintendo fully prepared to start defending its prized creation?
Pokémon, launched in Japan about 20 years ago, has long been an immensely successful entertainment property, and thus has been no stranger to attempted trademark and copyright infringement by others. To fend off these infringers, Nintendo has registered a healthy amount of trademarks related to the Pokémon brand across the globe. A look into its Pokémon-related trademarks reveals it has registered everything from the Pokémon video game titles to the names of popular Pokémon like “PIKACHU” (U.S. Reg. No. 2666722) and “CHARIZARD” (U.K. Reg. No. 2250402). What’s more impressive is how these registrations have been filed. A look at the registered “BULBASAUR” trademark (U.K. Reg. No. 2250394) reveals that it has been registered for a wide variety of goods, such as video game software, decorative windsocks, mechanical toys, sports equipment, toy cookware, plush dolls and batteries. Such broad registrations afford Nintendo equally broad power to enforce its trademark rights against potential infringers.
It is no surprise that Nintendo filed trademark applications for “POKÉMON GO” in the US, Canada, Brazil, Japan, Australia and the European Union. Registering a video game’s title and logo is a no-brainer to any video game creator. However, some video game creators go beyond just the title and logo to defend their video games and register the names of other things, such as Square Enix did when it registered the names of famous characters like “CLOUD STRIFE” (Japan Reg. No. 4215761) and the “CHOCOBO” (Japan Reg. No. 4529084) from the iconic Final Fantasy series. Given the amount of Pokémon name registrations Nintendo has, it is aware that it needs to do more than most in the trademark realm to protect the Pokémon brand—and has done as much as it could to protect it.
However, some trademark applications have recently been filed that could expose a vulnerable spot in the Pokémon brand’s infringement armor. On July 14, 2016, a trademark application for “POKESTOP” (U.S. Serial No. 87103237) was filed by mRadius in Class 043 for “Restaurant and café services.” On July 24, 2016, another application was filed by USA Goldweb LLC for “POKEMONSTOP” (U.S. Serial No. 87114104) in Class 042 for “Information technology consulting services.” While a look into “POKEMONSTOP” reveals a webpage that still has its default template language up, the website for “POKESTOP” reveals a more troubling entity. There, a rather suspicious looking “PokéStop” logo incorporating a pokeball appears at the top of the page with a common law “™” symbol affixed, and the middle of the page reveals the offering to be a Google-powered location search tool that “helps you find all your nearest hottest Pokéstops and events.” Although the trademark registration was for restaurant and café services, the offering seems to be more of an online software service like Yelp, but for Pokestops.
Those who have been playing Pokemon GO will readily recognize the “Pokestop” name. Pokestops are a location-specific feature of the game that rewards players with free in-game items when they are in close proximity to that specific location. Players can attach lures to these Pokestops and attract extra Pokémon for players to catch. These PokeStops, which could be anything from a local landmark to a restaurant, have had mixed reception from those who own or reside near a specified Pokestop. While some have been turned off by the sudden attention from players, other establishments, like restaurants, have taken advantage of the attention and even attached lures themselves to draw more players in.
While Nintendo will likely have little to no trouble eventually vanquishing these trademark applications, the occurrence does pose a rather puzzling question: How far should video game software trademark protection go? Had Nintendo filed a trademark application for the “Pokestop” feature’s name, would potential infringers have backed off from attempted infringement? Probably not, but it would have at least complicated things during the trademark application process for the previously mentioned marks. Should popular video games with creative in-game feature names be filing for trademark protection? It may seem excessive to many, but for those as big as the Pokémon brand, that extra step may end up being one less infringement headache.
—Mike Ortega is an Associate Trademark Consultant for Interbrand in New York.