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
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?