The legal issues surrounding the sudden success of "Pokemon Go” — one of the world's fastest-growing apps or games — are popping up as quickly as unhatched Eggs at a PokéStop.
Within days of the game's release, the National Safety Council issued a call that "urges pedestrians to exercise caution while playing the Pokémon Go augmented reality game" and "implores drivers to refrain from playing the game behind the wheel." A U.S. senator sought clarification from the game's creator about "data privacy protections, amid concerns the augmented reality hit was unnecessarily collecting vast swaths of sensitive user data." The Miami police department released a video about "possible dangers" in the game, while police in Spain issued safety guidelines after "two Japanese tourists were rescued from a motorway tunnel in Barcelona… where they had wandered in search of Pokemon characters." (Two men also fell down a cliff in Encinitas, California, while playing the game.)
The legal issues even reached China, where a conspiracy theory raised concerns that the Pokemon Go game could help the U.S. government "work out where Chinese military bases are by seeing where users can't go to capture Pokemon characters."
And surely it won't be long before the Federal Communications Commission is asked to investigate whether T-Mobile's offer of free high-speed data for Pokemon Go players runs afoul of "net neutrality" regulations.
Among the other legal issues that are likely to arise: cybersquatting.
Already, one blogger observed that nearly 4,000 .com and .net domain names containing the "Pokemon" trademark had been registered in a seven-day window — and I see now that the total has topped 7,000 so far this month. Surely some of the new gTLDs — such as .app, .game, .games, .play, .fan, .help, .party and .store (just to name some) — also will be appealing to opportunistic domain name registrants.
Indeed, the same blogger reported that the domain name <pokemongo.net> sold for $20,950 — a staggering sum considering what was calmly described as "some legal risk" associated with actual use of the domain name.
If history is any indication, the owner of the Pokemon trademark won't hesitate to pursue some of the registrants of Pokemon domain names. A search of filings under the Uniform Domain Name Dispute Resolution Policy (UDRP) shows that Nintendo of America Inc. has filed 13 complaints for 20 Pokemon domain names through the years, including pokemon2000.com (in the year 2000), pokemontradingcard.com and even pokefan.com.
In all of the reported UDRP decisions, panels ordered transfer of the Pokemon domain names to Nintendo.
While it appears as if Nintendo has not filed any UDRP complaints since the Pokemon Go game was launched, I expect we'll see some soon.
Out of necessity, I suspect that Nintendo will have to be selective about the domain names that it pursues. If they act like many other trademark owners, Nintendo may choose to prioritize those Pokemon domain names that it either wants to use for itself or that are actually causing damage or confusion.
For example, in one of the previous Pokemon disputes, a UDRP panel transferred the domain name pokemonl.com (what the panel called "a likely misspelling by typists of pokemon.com") after the registrant apparently used it first in connection with a pornographic website, then in connection with gambling websites and later to transmit computer viruses to unsuspecting Internet visitors. In finding bad faith under the UDRP, the panel said that the domain name registrant was "a commercial free rider at the expense of Nintendo," noting that a previous panel (in a UDRP dispute over pokemonpikachu.com) had called the Pokemon trademark "highly distinctive and fanciful."
Nintendo's success in pursuing cybersquatters via the UDRP should provide sufficient warning to cybersquatters seeking to capitalize on the success of the new game, as the trademark owner may start to make some of the newly registered Pokemon domain names go away.
Written by Doug Isenberg, Attorney & Founder of The GigaLaw Firm