Gotta Catch them All

This month Briffa was at EGX, I was a part of a panel which discussed basic IP rights in the gaming industry. Whilst walking amongst all the games and gaming paraphernalia, it had me thinking about IP in gaming and in particular a recent story regarding the global phenomenon Pokémon.

Everyone will have either heard of or even played the highly successful mobile game Pokémon Go! Where gamers walk around and catch Pokémon in their real-world surroundings. Whilst the game has been a huge success, both in terms of popularity and financially, it has also had its fair share of critics, particularly from China.

China has actually banned the game outright for a number of years now, citing a safety hazard for unaware drivers and pedestrians. Additionally, the game uses another banned service, Google Maps, which makes locating features in the game difficult.

As a result, knock-off games have sprung up in China for people there to get their fix of Pokémon catching. Adaptations of the game were generally accepted, after all, we know that the idea of the game itself cannot be protected. However, 6 Chinese companies took things too far, one in particular, Pocket Monster Reissue (Koudaiyaoguai Fuke), when they started using several iconic Pokémon characters within their game including, Pikachu, Ash Ketchum, and the world-renowned red and white poke ball.

As a result of using the familiar characters, Zhongnan Heavy Industries reported revenues of around $43.4 million in 1-year from sales on the Apple and Android app stores.

Consequently, and rather predictably, The Pokémon Company (TPC) has filed a motion to the Shenzhen Intermediate People’s Court in an attempt to prevent the defendants from continuing to develop their game, distribute it any further, and provide strong resistance to the promotion and operation of the knock off. TPS also seek $72.5 million in damages due to the incredible profits that the infringers have attained from their rather flagrant copying.

China is a signatory to various international agreements on IP, further making the flagrancy of this particularly odd, there can be no excuse for using these characters in this way. Pikachu has long been protected as both a word and figurative mark globally including in China, giving it extensive protection over the use of the name as well as the overall image. This extensive protection should make for an easy finding of infringement. Additionally, to further point out the clear-cut infringement of this case is the title of the game – Pokémon is an abbreviation for “pocket monsters;” hence Pocket Monster Reissue tells us everything about the intent behind this game.

If this case tells us anything, it is that knock-off products can achieve great commercial success in China due to governmental censoring which can stop the user base recognising unlawful use of popular characters. New game developers should take this case as a warning of counterfeit goods being made from your creations, and often you will not find out about it until the counterfeiters have made significant profits, damaging your reputation along the way.

At Briffa, we offer our clients a global IP watch service, which identifies and follows up leads to large scale knock-off production lines. This service allows us to stay on top of counterfeiting globally, preventing damage to our client’s reputation and loss of revenue.

Written by Alex Welham – Solicitor