Mayhall Fondren Blaize

Business litigation looms as a byproduct of new Pokemon craze

A new smartphone game uses virtual reality by taking players out into the real world to look for virtual objects to input with the onscreen competition. The game of "Pokemon Go" is tremendously popular right now, including in Louisiana, but it may also be a significant source of business litigation as it tries to function in the business world. Some businesses have embraced the game and are running various promotions to take advantage of its popularity.

For example, McDonald's is partnering with the game's creator, Niantic, to turn certain McDonald's locations in some countries into Pokemon gyms, where people may go to engage in virtual battles. There are a growing number of other promotions that use the game as a hub to draw customers into virtual activities. However, there are some evident complications that may spur litigation alongside the owner's growing business returns.

First, many of the businesses are inappropriate places for children. Because children play the game, any hub of promotional activity may bring children to the location. This increases the prospect of personal injury to the children, which will inevitably bring lawsuits against the business for compensation of injuries suffered.

Another potential problem is interference with the Niantic intellectual property holdings. All of the characters and icons are considered intellectual property of Niantic, but the company does publish a warning telling users not to use its property for commercial purposes. Business owners should avoid complications by not using the Niantic figures in an excessive or legally indefensible manner.

Companies in Louisiana and elsewhere should also not make promotions that appear to be supported by a partnership or some arrangement with Niantic, and should avoid making it appear that the company is an official location for the game. In trademark law, there is a concept called "nominative fair use" which allows using the other entity's trademark when it is necessary to send a legal message about one's business. A business that has a serious concern in these respects will do best by consulting with a business litigation attorney to determine the parameters of what can be done.

Source: richmond.com, "Leading-Edge Law: Issues when using 'Pokemon Go' to promote business", John Farmer, July 24, 2016

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