Pokemon Vs. Pokellector In Trademark/Copyright Dispute

from the gotta-threaten-em-all dept

Wed, Feb 12th 2014 8:31pm — Timothy Geigner

Call me naive, but when someone mentions something about the Pokemon franchise to me, I instantly think of the television shows and video games that became so wildly popular among children in the past decade. It's a bit to my surprise that there is actually an active trading card component to the business. Pokemon, too, is known for being fairly aggressive in defending its intellectual property.

And now we learn that Pokemon is suing Marcus Frasier, owner and operator of the Pokellector website and smartphone app.

The gist of the lawsuit is that Frasier's Pokellector app and website allegedly use certain Pokémon trademarks and copyrights without Pokémon's permission. For trademarks, Pokémon alleges that the Pokellector name/image is substantially similar to the "font and style of the 'Pokémon' logo," which could cause consumer confusion.

Let's get the obvious comments about the trademark claim out of the way: Pokemon is correct. The logo used by Frasier is indeed similar enough to the original brand as to cause confusion. I might still suggest that a more amicable method for resolution would be preferred compared to a lawsuit, but that's a secondary concern. More interesting is the copyright claim and its implications on the wider trading card industry.

It appears that the Pokellector app and website allow users to view listings of Pokémon cards and, in most instances, when users click on the name of the card, an image of the card appears on the screen. These images are allegedly identical to the cards copyrighted by Pokémon except for one thing, the addition of the Pokellector logo to the cards. Pokémon alleges that by adding this logo to the cards, Pokellector improperly "branded" these cards in an apparent attempt to thwart further copying by others.

Here's where things get more interesting. Again, if the claim that the app and site use copyrighted images off of the trading cards, they're probably in the right legally. All asserting that does, however, is open up a whole slew of questions for Pokemon and the trading card industry in general. These questions include why they don't go after all manner of online retailers that do a similar type of rebranding, such as popular sellers on eBay? Why are they in this case acting aggressively on the copyright claim when there isn't trademark's provision for active protection or the loss of the government privilege? And, finally, why assert this claim when the overwhelming likelihood is that sites and apps like this only serve to promote Pokemon's business? It's worth keeping in mind how lax most companies in this industry are when it comes to this type of thing.

The question that arises is where is the dividing line between permitted-technically-infringing uses versus unauthorized-infringing uses of trading card images? It looks like eBay use is likely OK given the millions of Pokémon cards currently for sale there (with images of those cards), but is a website that provides images of cards for indexing purposes going too far in Pokémon's mind?

It should be emphasized that the sports trading card industry likely would not be as aggressive as it appears Pokémon is being here. In fact, sports trading card manufacturers seem to encourage the displaying of images of their cards online. Also, Pokémon is more active in protecting copyrighted images of its cards.

All of the questions I mentioned above would appear to be resolveable if Pokemon looked at this infringement as an opportunity rather than a fly to be swatted. Assuming they could resolve the trademark portion of the dispute amicably, working with Pokellector to promote the trading card portion of this business would seem to be a smart effort. After all, that site and the app are clearly fulfilling some kind of desire within card collectors and can only have a positive effect on the purchasing of more Pokemon cards.

On top of all that, it isn't entirely clear that using the images of the cards in this manner doesn't fall under fair use provisions. There is precedent for building collections of images in this way being fair use, such as cases for books that display concert poster artwork. Given all of these questions, filing suit in this case could be extremely problematic.

So why go the lawsuit route instead of a symbiotic business arrangement?

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Filed Under: copyright, marcus frasier, pokemon, trademark

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kenichi tanaka (profile), 12 Feb 2014 @ 9:41pm

While I abhor companies using their trademarks or patents to swat people down like it was Thor's mighty hammer from the gods in Asgard, in this case, I have to side with Nintendo, who owns the Pokemon franchise, last I checked.

Pokellector obviously tries to use the Pokemon brand name to sell its product and rather than actually license the rights from Nintendo. If this were merely parody, I would see a claim for fair rights under parody law, but this is not what it is. It would be as if someone made an app using characters that resembled the X-Men and simply renamed them as "Ex-Men" or "Men of X". It sounds ridiculous but I just don't see how the makers of the Pokellector app have any kind of leg to stand on. They appropriated the Pokemon franchise and tried to make money off it.

Timothy, the name of the company is Nintendo, NOT Pokemon. Pokemon is merely the name of the franchise. lols

Timothy suggests that maybe Nintendo should find this as an opportunity. Why should they? If someone misappropriated my car, robbed a bank, got injured, and then tried to sue me for damages, let's just say that I wouldn't have any sympathy for that person and would fight against it until every avenue was exhausted.

BTW, I seem to recall that the producers for the new Godzilla film did something similar. Producers Roy Lee, Dan Lin and Doug Davison obtained the rights for the Godzilla franchise, brought it to Legendary but then after Legendary decided it didn't need the help of the producers who acquired the rights, tried to preempt the producers by filing a counterclaim, demanding arbitration? While it's not the same thing, there seems to be a whole of misappropriating going on by individual people and by large companies.

Plus, Pokemon was the original "card game turned anime" series which inspired a lot of clones and pretenders to the throne. I just think that Nintendo is going to be the one winning in the end.
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Anonymous Coward, 12 Feb 2014 @ 11:41pm

I'm known among my peers for being a fanatic of the series, and frankly, this is a surprise. Lots of fansites for information and websites that sell the cards often add the websites' URLs on the card images to prevent other websites from using them. Why go after this specific example when so many other websites are doing the same thing?
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kenichi tanaka (profile), 13 Feb 2014 @ 12:58am

Anonymous Coward, that's called a watermark and that is entirely different than what Pokellector is doing, which is placing its own logo on the face of the digital representation of the card in app.

Many websites often place the logo of their website over the image because they took the time to scan it in, and to prevent other websites from "lifting" the images that they scan. They're not claiming ownership or control over the image but rather staking their claim that the image is exclusive to their site.

Pokellector simply takes the image and claims it as their own. Many websites use "watermarking" to claim ownership over producing the image or having the exclusivity of presenting that image first on their website.

That's different than claiming ownership over the content that appears in the image.
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Beech, 13 Feb 2014 @ 1:17am

Re:
I must respectfully disagree.

From briefly visiting the site, it looks just like a listing of a bunch of the cards, with links to where you can buy them for how much. A picture of the product is the best way to show precisely what card you're talking about. You know how many different versions there are of pikachu? 30 (based on a quick search). So if you really need a specific one of those for your collection, then search for "pikachu" wouldn't it be nice to see a list of pictures of them so you can find exactly which one you want?

It is NOTHING like someone stealing your car, OR someone robbing a bank. It would be like if you owned an art dealership, and kept a visual catalog of paintings available for purchase from third parties. Is that copyright infringement? Trademark infringement? Is it a competing product? Do you see someone tearing a page out of the catalog and hanging it on their wall instead of the painting they originally wanted?

As far as trademark goes, it doesn't look like this site is competing at all. Pokelecctor isn't trying to sell knockoff versions of cards, they are making it easy to buy offical Pokemon brand cards. They are doing Nintendo a valuable service of helping create a robust resale market, which you would think would be vital from a "collecting" standpoint. Nintendo doesn't have a service to point you to potential places to buy individual cards as far as I know. And I am fairly certain that no one is going to be "confused" between the pokemon mark and the pokelecctor mark. They aren't targeting morons in a hurry, their audience is people who are already invested in the pokemon cards who will clearly be able to tell the difference.

Furthermore, your last sentence is incorrect. Pokemon was a video game first, then was adapted into an anime, then a trading card game. So it wasn't the "Original card game turned anime," not that I have any clue what that would have to do with this case anyway.
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Beech, 13 Feb 2014 @ 1:23am

Re:
from my 30 seconds on the site, the pokelecctor logo only shows up on the thumbnails on the front page (which are way too small to read.) when you click on one it brings up the unaltered image of the card. I really don't think pokelecctor is trying to claim anything as it's own, and as i said above, it's customer base is composed entirely of people knowledgeable enough about the franchise to know the difference.
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Ninja (profile), 13 Feb 2014 @ 1:29am

So why go the lawsuit route instead of a symbiotic business arrangement?

THIS IS SPARTA! No blood shall remain unspilled! No lawyer shall remain jobless!
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Violynne (profile), 13 Feb 2014 @ 3:35am

Pokemon is owned by Nintendo.

Need I say more?

Remember, this is the same company which decided to hijack "Let's Play" revenue from anyone who uses their "intellectual" "property" while at the same time promoting their "intellectual" "property".

What's not "intellectual": Nintendo's knee jerk reaction to crap like this.

Gee, what a "Please stop using our trademark and add a disclaimer this isn't supported by Nintendo" message would do, because Nintendo doesn't have an app like this at all.

This is what bugs me about companies. They see a popular product, shut it down, then do nothing to fill the void.
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Rex (profile), 13 Feb 2014 @ 4:10am

Overblown
It's sad but I place my money on this being another one of those: "The lawyer took the opportunity to send out a letter and aggressively pursue rather than actually notifying the home company first". The lawyers at Pokemon probably just saw dollar signs like usual and went into attack mode without thinking (also like usual).

Now that it's making the new they're thinking "oh s**t, maybe we shouldn't have done this."

We'll probably hear later about how Pokemon quickly dropped the matter and states about how they encourage their fans to support their product.
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PaulT (profile), 13 Feb 2014 @ 4:24am

Re:
There's a difference between letter of the law and spirit of the law. While Nintendo are legally correct, neither you nor Nintendo is making a convincing argument as to how this harms them, or how shutting it down will help them.

"Pokellector obviously tries to use the Pokemon brand name to sell its product"

The product is free and 100% targeted at people who have already purchased Pokemon items from Nintendo, removing exactly 0 purchases from them. How is this a bad thing?

"It would be as if someone made an app using characters that resembled the X-Men and simply renamed them as "Ex-Men" or "Men of X""

Utterly irrelevant, and a silly comparison. The product here is not a competing brand or product. It's an app/website that helps EXISTING customers of Nintendo get the most from and/or grow their collection.

"If someone misappropriated my car, robbed a bank, got injured, and then tried to sue me for damages"

You're really bad at analogies, aren't you?

"Plus, Pokemon was the original "card game turned anime" series which inspired a lot of clones and pretenders to the throne."

But not the original trading card game series. Are you saying that Wizards Of The Coast (among others) should be suing Nintendo because they so clearly borrowed the idea from Magic The Gathering, or does simply creating an anime make them immune in your eyes?
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Just Sayin', 13 Feb 2014 @ 4:30am

Re: Re:
"There's a difference between letter of the law and spirit of the law. While Nintendo are legally correct, neither you nor Nintendo is making a convincing argument as to how this harms them, or how shutting it down will help them. "

The compelling argument is pretty simple: If you allow this step (having someone borrow your name and images and claim them as your own) how long before someone prints new cards and claims them as their own? How long before your trademarks are devalued to the point of being indefensible?

Pokellector isn't a business op for Nintendo, it's a shotgun wedding, Timothy is suggesting that they should bend over and enjoy the ride, because they might, maybe, possibly make a few bucks out of it. They don't need this guy trading on their name, likeness, and product.

If he called the place "car exchanger" and refrained from sticking logos on the pokeman card images, he might have a case for use as a reseller (showing your products). The current setup has way to much look and feel of the original, to the point where one could wonder if it's Nintendo's own site. At that point, the guy loses any argument.
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Anonymous Coward, 13 Feb 2014 @ 4:44am

Really?
So why go the lawsuit route instead of a symbiotic business arrangement?

Easy. If a company appears that is wholesale stealing art and design assets, under a similar name in an attempt to grab money, as the owner of the other company I would not trust them with an inch.

Now I'm not saying Nintendo would accept a 3rd party making an android app if approached before development, but doing it anyway seems like an easy way to piss them off.
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That One Guy (profile), 13 Feb 2014 @ 5:20am

Re: Really?
'in an attempt to grab money'

What money?

The app/website are, I believe, free. The person who made them isn't selling anything, rather he's pointing people to where they can buy cards.

How, exactly, is he 'attempting to grab money' from Nintendo here?
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PaulT (profile), 13 Feb 2014 @ 5:36am

Re: Re: Really?
The second person so far to claim this, but no response as to why. Two possibilities come to mind - these people haven't actually looked at what the site/app actually consist of, so are attacking wild assumptions rather than reality (as is depressingly common round here), or it's a variation on the "Google has ads so they make billions solely from infringement" type of rubbish.

Funny thing is, even if that were true, there's no evidence that any money is taken from Nintendo rather than this being an ancillary service that actually improves things for their existing customers. Surely one of the detractors can explain why I'm wrong.
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Anonymous Coward, 13 Feb 2014 @ 6:00am

the dividing line, in cases such as this is $ sign. if there were loads of them, the lawsuit may not have even been attempted. as there are very few of them, ie, the person is probably not very wealthy, the suit will go ahead unless he does as directed. if the latter happens, i wonder how long before an 'official' attempt at the same card thing is released?
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KoD (profile), 13 Feb 2014 @ 6:22am

The way I see it, selling these items on eBay is a completely different situation than what this app is doing, a point I don't think you make strongly enough in the article. Do people not have the right to (re)sell goods which they have legally purchased? If the answer is yes, then I would also imagine that they are entitled to displaying an image of the item they are selling, for purposes of selling that item...
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akp (profile), 13 Feb 2014 @ 8:57am

Re:
The Pokemon Company would like a word with you. (http://www.pokemon.com/us/about-pokemon/)

Pokemon IS a company and a brand in its own right. The rights to the video games are jointly owned by TPC, GameFreak, and Nintendo. Nintendo has nothing whatsoever to do with the card game, for instance.

So it's not Nintendo who's fighting this at all, it's The Pokemon Company
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akp (profile), 13 Feb 2014 @ 9:01am

Re:
No, it isn't.

http://www.pokemon.com/us/about-pokemon/

Nintendo shares the publishing rights to the video games (along with GameFreak), but does NOT own the entire franchise.
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Lurker Keith, 13 Feb 2014 @ 11:46am

Re: Re:
My brief research on this shows Pokemon was created by & still owned by Nintendo (who started out as a card company over a century ago). The Pokemon Company is probably a subdivision or maybe a management company that manages the non-game aspects of the Franchise.

The main rights holder appears to be Nintendo, but The Pokemon Company probably is treated as its own company.
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John Fenderson (profile), 13 Feb 2014 @ 12:30pm

Re:
"They're not claiming ownership or control over the image but rather staking their claim that the image is exclusive to their site."

That's news to me! Seriously, I always thought that sites that did this were actually claiming ownership.
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Alan Wexelblat, 13 Feb 2014 @ 1:20pm

This is Nintendo after all
I think this is part of Nintendo's moves to assert control over uses of what it sees as its IP. They're the company that went after monetization rights on fan-created YouTube content, for instance.

Going after a distributed set of sellers on eBay is probably harder and more expensive, but I wouldn't be surprised to learn Nintendo is in discussions with eBay-the-company on how to restrict this.

My main point is that I see this as a Nintendo action, not a sea change in how copyright and trademark are applied to ccgs. Take as a counterexample how Blizzard is responding to the multitude of sites that host images of its new Hearthstone card game: by ignoring or encouraging them. This mirrors Blizzard's response to video makers on YouTube, where it has reassured them it has no intention of pursuing copyright claims.

Nintendo is, I think, in a world of hurt from their bombing game console. They need revenue and are making some dumb moves.
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Kendall Redburn, 6 Mar 2014 @ 2:12pm

Re:
Pokellector does not sell anything.
Pokemon International is the company that produces all of the Pokemon trading Cards outside of Japan.
Japan's Pokemon Co. Owns and produces the card game in Japan.
The Anime came before the card game.

Lols you got just about all of your facts wrong.
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Anonymous Coward, 19 Mar 2014 @ 1:00am

Re: Re: Re:
As someone who actually plays the card games you're an idiot if you think most players can be fooled by the man on the street printing their own cards and declaring them official.

But then again you're a skullfucked shithead with copyright cock on the brain.
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Guest User (Insert Random Number), 6 Feb 2015 @ 2:48pm

Re:
Let me point out why I laughed at your post. Please, fact check yourself if you don't want this happening again.

"While I abhor companies using their trademarks or patents to swat people down like it was Thor's mighty hammer from the gods in Asgard, in this case, I have to side with Nintendo, who owns the Pokemon franchise, last I checked."
Nintendo does not OWN Pokemon. It only has licensed it. Same for Wizards of the Coast. Nintendo has Video Game distribution rights, WotC has TCG distribution rights. That does not give them any more ownership of a product than if your friend asked you to pass out some flyers. Do you own the flyers you're passing out? Technically, no. Your friend does, but you're being given the ability to pass them around.

"Pokellector obviously tries to use the Pokemon brand name to sell its product and rather than actually license the rights from Nintendo."
Why get licensing rights from someone who doesn't have authority on the matter? Anyhow, Pokellector sells Pokemon cards and works as a database for people. The name is too similar and directly appearing to be connected to Pokemon which is misleading. (That's the real issue.)
"If this were merely parody, I would see a claim for fair rights under parody law, but this is not what it is. It would be as if someone made an app using characters that resembled the X-Men and simply renamed them as "Ex-Men" or "Men of X". It sounds ridiculous but I just don't see how the makers of the Pokellector app have any kind of leg to stand on. They appropriated the Pokemon franchise and tried to make money off it."
It's not a card game app... It's a collection app so people know what cards they have and what they don't as well as allow them to find where they can get the card(s) they're looking for.

"Timothy, the name of the company is Nintendo, NOT Pokemon."
Again, Nintendo has no jurisdiction. If anything, you'd be looking at Wizards of the Coast who still don't have authority here.

"Pokemon is merely the name of the franchise. lols"
Pokemon is a company centrally located in Japan with offices all over the world. Please, research for five minutes. This comment made you lose all credibility. If you don't know what you're talking about, don't comment.

"Timothy suggests that maybe Nintendo should find this as an opportunity. Why should they? If someone misappropriated my car, robbed a bank, got injured, and then tried to sue me for damages, let's just say that I wouldn't have any sympathy for that person and would fight against it until every avenue was exhausted."
Not Nintendo... Pokemon. Po-Key-Mon. Anyhow, I find no error with this comment otherwise. (Congrats.)

"BTW, I seem to recall that the producers for the new Godzilla film did something similar. Producers Roy Lee, Dan Lin and Doug Davison obtained the rights for the Godzilla franchise, brought it to Legendary but then after Legendary decided it didn't need the help of the producers who acquired the rights, tried to preempt the producers by filing a counterclaim, demanding arbitration? While it's not the same thing, there seems to be a whole of misappropriating going on by individual people and by large companies."
Not quite the same, nor does it deserve noting on here due to the lack of direct relevance.

"Plus, Pokemon was the original "card game turned anime" series which inspired a lot of clones and pretenders to the throne. I just think that Nintendo is going to be the one winning in the end."
Not Nintendo... They have NOTHING to directly do with Pokemon. NOTHING. Anyhow, you're still wrong, as usual. It was video game turned card game, then manga (very soon after, based on the video game and its characters, not the TCG), then anime (a loose adaptation of the video game with many plot errors not consistent with the original, which is understandable). The video game came first which was the cause of the popularity surge. If it wasn't for the video games (Red and Green/Blue), then the card game and anime wouldn't exist. Don't act like the TCG was all that special. All it did was make Pokemon more money by piggybacking off of the popularity of the video games.
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