We have already seen cases where someone wanted to use animated characters for their business. However, without a proper licence, this can become expensive.
Pokémon GO is a mobile gaming app based on the principle of augmented reality. It connects the gaming environment to the real world via a smartphone. In the game, we search for Pokémon in the real world, but we only see them through our mobile phone. One hundred million people have already downloaded the app.
So, the flippers among entrepreneurs are considering how to bring the “seeker” right to their door. The idea is very tempting, but it may backfire.
What’s the risk?
Pokémon belongs to its creators, and not only the name, but also the graphic design, simply a work of authorship as such. Thus, the rights owner (which is not actually Nintendo, but the Pokémon Company) can demand that anyone misusing its work or trademark refrain from doing so in the first place, that all “fake” Pokémon be removed immediately and that they stop misusing it for their own benefit.
However, it can also demand the release of unjust enrichment, i.e. what someone has earned from the use of the Pokémon, and compensation for damages caused by the unauthorised use. In addition, he can also claim damages if the use of the Pokémon has in any way diminished its value. Whether it is possible to diminish the value of a work such as a Pokémon in this particular case is for each person to decide.
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Couldn’t the creator of Pokémon himself be breaking the law?
In the United States, however, the opposite viewpoint is also being addressed. Isn’t the Pokémon Company also breaking the law by placing its characters in various places without the owners’ consent? Can someone encroach on your property in cyberspace? What if someone trespasses on private property just to catch a rare Pokémon only visible in virtual reality through a mobile phone screen? It could even be a crime. In the US, trespassing even carries the immediate risk of being shot with a legally held gun. Pokémon hunting can thus be a very dangerous pastime.