United States: Riding The Initial "Pokémon Go" Phenomenon: Branding Basics

Pokémon Go, released July 6, has unleashed a swarm of hopeful Pokémon trainers into the world, seeking to, as Pokémon famously says, "catch 'em all." And while Pokémon Go users are traversing cities, towns and hamlets to catch Pokémon, advertisers want to catch a little of that Pokémon magic.

Brands and local businesses are recognizing the consumer engagement potential associated with Pokémon Go. The app – available on both iPhone and Android devices – uses real-time location data to create an augmented reality for users to catch Pokémon in their own homes and in and around public places like libraries, parks and landmarks.  App creator Niantic, Inc. set pre-established locations throughout the world ("PokéStops") where Pokémon Go users can obtain special in-game items, and now users are descending on those areas in masses.

Ever seeking to engage their customers, businesses are asking what the legal ramifications of engaging users may be. Since neither Niantic, Nintendo nor Pokémon has released any guidance for marketers to follow, below is a set of guard rails for businesses that may be useful.

  • Avoid creating a false impression that the business or brand is associated or connected with or authorized or approved by Pokémon.
  • Do not use words or phrases that state explicitly that your business is an "official" PokéStop or use other messaging that connotes a special relationship between your brand and Pokémon.
  • Do not use pictures of Pokémon characters or any of the other copyright elements owned by Nintendo. For example, you do not need to show a Pikachu on a sign that communicates that your establishment is or is near a PokéStop.
  • You also do not need to use the distinctive design of the word mark POKÉMON to communicate the fact that Niantic placed a PokéStop at or near your store. In short, do not use more of the distinctive character of the trademarks referring to the mobile phenomenon than is necessary.
  • If you use a "lure module" and want to create a promotion ("Hey! We're a PokéStop! Come down to the Shoe Store between 2 pm and 4 pm. We'll be activating our lure modules during that time to attract lots of Pokémon!"), be sure you think about crowd control and safety in and around your store. Many users will be focused on their phones, not their surroundings. Also, be sure your business can accommodate the increased foot traffic. Will the influx of consumers impact your ability to service customers? Failure to anticipate significant spikes in business could result in negative customer reviews.

In the near future more formalized sponsorship programs will be available for businesses. Indeed, the Financial Times reports that Pokémon Go will soon offer the ability to sponsor PokéStops. In an interview with Niantic CEO John Hanke, the Financial Times learned that the sponsorship relationships will be charged on a "'cost per visit' basis, similar to the 'cost per click' used in Google's search advertising." No additional details were revealed, but expect them soon. Speculation abounds as to how "cost per visit" will be measured. For example, a Pokémon Go player can access the various virtual gifts at a PokéStop (e.g., eggs, balls, berries, potions, etc.) as often as once every five minutes. Does a "visit" occur each time a person spins the PokéStop icon to release an item?

Until such time as sponsorship details are made public, the Pokémon Go phenomenon is something special and businesses should be able to talk about it, even in a commercial context, so long as the advertising does not create confusion or mistake as to the nature of the relationship between the business and Pokémon.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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