In our previous article "
Pokémon GO Shows How to Augment Reality and your
Intellectual Property", we discussed the value and
diversity of the Pokémon Intellectual Property
("IP") portfolio. Pokémon GO was used as an
interesting example of the evolution of IP protection to cover
integration of the Pokémon brand with new augmented reality
technology. Trademarks, copyrights, trade secrets and patents all
played an important role. This article will provide a high level
overview of certain key agreements used to further protect
augmented reality IP, with specific reference to the Pokémon
IP. The use of agreements to control IP is similar whether the IP
is computer-related, mechanical, or life sciences.
protect IP by controlling what end users do with the game and its
– declining the agreement ejects you from the game. They also
authorize game play, but prohibit certain unauthorized uses of the
and its licensors...exclusively own all right, title, and interest
in and to the Services and Content, including all associated
intellectual property rights." If a user violates the terms,
for example, by misusing the IP, then that user may be cut off from
further use and could have a legal liability if the violation was
an IP infringement.
monetization strategy. In a free-to-play game where players can
purchase in-game content for advancement, "cheating" can
undermine the value of the purchasable content and frustrate paying
users. Recently, Pokévision and other Pokémon
trackers that relied upon Niantic's API to map the location of
Pokémon have been shut down, allegedly for breaching the
permanent bans against players who employ GPS spoofing, bots, and
which prohibits such activities.
Other Negotiated Agreements
Pokémon GO is the result of the collaboration between The
Pokémon Company and Niantic. The Pokémon Company is
jointly owned by Nintendo, Game Freak and Creatures, and is
responsible for licensing the Pokémon IP. Niantic is a
Google spin-off with expertise in augmented reality and
location-based mobile gaming from their earlier works Field Trip
and Ingress. We are not privy to the agreements between the
co-owners of the business, but they undoubtedly deal with
confidentiality, IP ownership, and sharing of proceeds. For
example, Nintendo is licensing its Pokémon GO trademarks to
Niantic, but retains control over the mark and how it is used. It
is good to have agreements in place early on before revenue starts
to flow, so that parties' entitlements and obligations are
clear. Undoubtedly, there are also confidentiality and IP ownership
agreements in place with the employees, independent contractors and
outside companies that help develop and promote the games. These
contracts ensure that all IP ownership, for example, in graphic
design, software code, game functionality and other work product,
is transferred to the appropriate owner, regardless of which
outside party is the author or inventor.
As this augmented reality example shows, while identifying and
registering IP is a good practice, the IP also has to be carefully
controlled. This control should be exercised not just with respect
to competitors, but also end users and business partners. Use this
strategy with all types of IP, not just the latest technology.
Using clear and strong agreements will ensure that a company can
retain, maintain and profit from its investment into IP.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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