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ATTLEFIELD
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A
NDREW
L.
R
OSSOW
A
BSTRACT
Our society, and its millennials, have entered the digital age, whereby almost everything is conducted
and perpetuated through electronic devices. Smartphones have dominated the mobile device market
and have allowed its users to download mobile applications and games to the device. Pokémon Go, is
the latest trend in mobile gaming and the start to a bright future of augmented reality. But what
happens when augmented reality meets the physical world? Do our modern-day statutes and laws
extend into the cyberspace that it is augmented reality? What happens when a user of an augmented
reality game enters onto the property of another and inte
property right of quiet enjoyment and use of the property? Should the mobile game user be held liable
under trespassing or nuisance laws? Should the Developers of such a game be held liable under
theories of negligence, trespass, and/or nuisance? This article attempts to explore the concept of
augmented reality as it pertains to the creation of Pokémon Go by Niantic, Inc., The Pokémon
Company, and Nintendo. Pokémon Go is the latest augmented reality game for iPhone and Android,
which allows its user to travel in the physical world, while catching Pokémon in the virtual world,
depicted through a Google interface overlay.
Copyright © 2017 The John Marshall Law School
Cite as Andrew L. Rossow, Gotta Catch . . . a Lawsuit? A Legal Insight into the
Intellectual, Civil, and Criminal Battlefield Pokémon Go has Downloaded onto
Smartphones and Properties Around the World, 16 J.
M
ARSHALL
R
EV
.
I
NTELL
.
P
ROP
.
L.
329 (2017).
329
G
OTTA
C
ATCH
. . .
A
L
AWSUIT
?
A
L
EGAL
I
NSIGHT INTO THE
I
NTELLECTUAL
,
C
IVIL
,
AND
C
RIMINAL
B
ATTLEFIELD
P
OKÉMON
G
O HAS
D
OWNLOADED
ONTO
S
MARTPHONES AND
P
ROPERTIES
A
ROUND THE
W
ORLD
A
NDREW
L.
R
OSSOW
I.
I
NTRODUCTION
............................................................................................................. 330
own Across the World and
Going Poké-
Successful Start to Augmented Reality........................................................... 330
B. Nintendo Has Just Created a large battlefield of Legal Trouble ................... 331
II.
I
NTELLECTUAL
P
ROPERTY
.......................................................................................... 332
-Game Elements ............ 333
-Game Purchases 201(a) of the
Copyright Act? ............................................................................................ 334
-
.............................................................. 334
Should Transcend Intro Virtual Reality Cyberspace ..................................... 335
C. Property Owners have the Right to Refuse Permission to the Developers
Creation and Placement of AR-Elements on Their Property ........................ 336
While Protecting its Trademarks .................................................................... 337
E. The Developers Have Created Liability Under the Attractive Nuisance
Doctrine ............................................................................................................. 338
F. Pokémon Trainers Around the Country Are Now Trespassing on Private
Property ............................................................................................................. 340
G. Should Pokémon Go Fall Under State Negligence Laws? .............................. 342
H. What Crazy, Future Battles Can We Expect to See in the Augmented
Reality Arena? .................................................................................................. 345
I. What does the Battlefield of Augmented Reality Look Like Moving
Forward? ........................................................................................................... 345
1. Class-Action Lawsuit: In Re Pokémon Go Nuisance Litigation ............ 345
[16:329 2017] The John Marshall Review of Intellectual Property Law 330
G
OTTA
C
ATCH
. . .
A
L
AWSUIT
?
A
L
EGAL
I
NSIGHT INTO THE
I
NTELLECTUAL
,
C
IVIL
,
AND
C
RIMINAL
B
ATTLEFIELD
P
OKÉMON
G
O HAS
D
OWNLOADED
ONTO
S
MARTPHONES AND
P
ROPERTIES
A
ROUND THE
W
ORLD
A
NDREW
L.
R
OSSOW
*
I. I
NTRODUCTION
A. kéBalls are Being Thrown Across the World and Going Poké-
Reality
phone users. Niantic, Inc., in partnership with Nintendo, Ltd. and The Pokémon
Company, have released the hottest mobile game since Candy Crush Saga.
1
Pokémon
Go is a mobile augmented reality game that encourages users to go out into the real
world and use their smartphone to catch Pokémon. Pokémon
, created by Satoshi Tajiri. Depicted in the
market through trading card games, Gameboy games, and approximately 20 seasons
of TV series, Pokémon has been one of the most successful franchises in the millennial
generation.
2
The goal of the game is to catch the Pokémon, train them, and battle
against other Pokémon trainers.
Many wonder what exactly is augmented reality and why it is so popular.
Augmented reality is an idea that has been developed and tested, yet has failed to live
up to its potential, at least until recently. Augmented reality ( AR ) refers to a view of
the physical, real-world environment whose elements are supplemented, or
augmented, with computer-generated images and sound via an electronic device.
3
In
and our world have now been augmented with
*
Andrew L. Rossow 2017. This article was written for purely educational purposes and is strictly
the opinion of its writer. In no way does this article lend itself to give legal advice to its reader(s), or
does it intend to attack the Developers or Players. This article is an attempt to inform its readers of
the concerning ramifications augmented reality will begin to have on mobile devices, its users, and
our legal system. Thank you for taking the time to read this article. Mr. Rossow is a cyberspace and
technology attorney in Dayton, Ohio.
1
Om Malik, Pokémon Go Will Make You Crave Augmented Reality, T
HE
N
EW
Y
ORKER
(Jul. 12,
2016), http://www.newyorker.com/tech/elements/pokemon-go-will-make-you-crave-augmented-
reality; see also Stephanie Lee, What Is Pokémon Go and Why Is Everyone Talking About It?,
LIFEHACKER
(Jul. 11, 2016, 11:00 AM), http://lifehacker.com/what-is-pokemon-go-and-why-is-
everyone-talking-about-it-1783420761.
2
http://www.pokemon.com/us/pokemon-episodes/pokemon-tv-seasons/.
3
Keith Lee, Is PokémonGo Illegal?, A
SSOCIATE S
M
IND
(July 11, 2016),
http://associatesmind.com/2016/07/11/is-pokemongo-illegal/; Om Malik, Pokémon Go Will Make You
Crave Augmented Reality,
THE NEW YORKER
(July 12, 2016), http://www.newyorker.com/tech/
elements/pokemon-go-will-make-you-crave-augmented-reality; see also Brian D. Wassom, Pokémon
Go And The Crisis On An Infinitely Augmented Earth, WOSSOM.COM
(July 10, 2016),
http://www.wassom.com/6316.html (addressing the issues of AR).
[16:329 2017] Gotta Catch . . . a Lawsuit? 331
a Google Map-type interface, populated with Pokémon, battle gymnasiums, and
PokéStops.
PokéStop n in-game landmark that players can be lured into visiting for in-
game items that help them in their journey to catch, train, and evolve their Pokémon.
4
PokéStops are located at places such as libraries, churches, restaurants, private
residences, and museums. These PokéStops have already begun luring users into
simulated criminal battles. The gyms are places the individual can go to battle other
trainers Pokémon with your own.
To sum up what Pokémon Go actually is, it is a mobile game that puts an
augmented layer of Poké-Content on top of a Google Map interface program. This
allows players to use their smartphones GPS and camera in combination with their
Poké-World to find Pokémon,
catch them, train them, and battle against other players. This game takes players
down public streets, into public parks, into restaurants, into museums, and even onto
private property such as churches and homes.
5
As of July 13, 2016, Pokémon Go was the biggest mobile game since Candy Crush
Saga, with a starting peak of over 28.5 million users (one week after the game
launched).
6
While the fanbase for the game has decreased, as of April 4, 2017, there were
approximately 5 million active users still enjoying the virtual Pokémon world.
7
As of
today, the game is still being updated with the addition of new Pokémon, where at
least 80 new Pokémon were added back in February. Moving forward, the developers
-
player battling and Pokémon trading, similar to the original Gameboy games.
8
B. Nintendo Has Just Created a large battlefield of Legal Trouble
This Article will attempt to break down the numerous legal implications Niantic
has created in both real life and cyber-space through the success of its AR-centric
mobile game. While Niantic, Inc., Nintendo, Ltd., and The Pokémon Company
) have created a way for people of all ages to get off their couches and go
outside, it has also unintentionally created a legal battlefield of issues spread through
cyberspace and the streets and neighborhoods of our daily lives. Lawyers are trained
4
Kyle Hanson, Pokémon Go Guide: What Are Pokéstops and How to Use Them, A
TTACK OF THE
F
ANBOY
(July 7, 2016), http://attackofthefanboy.com/guides/pokemon-go-guide-PokéStops-use/.
5
Dave Their, What Is 'Pokémon GO,' And Why Is Everybody Talking About It?, F
ORBES
(Jul. 11,
2016, 11:44 AM), http://www.forbes.com/sites/davidthier/2016/07/11/facebook-twitter-social-what-is-
pokemon-go-and-why-is-everybody-talking-about-it/#247aa1d221c7.
6
Jacob Segal, , available at
http://bgr.com/2017/04/03/pokemon-go-popularity-2016-users/.
7
Craig Smith, 80 Incredible Pokémon Go Statistics and Facts (April 2017), available at
http://expandedramblings.com/index.php/pokemon-go-statistics/.
8
Matt Weinberger, The fad may be over Pokémon Go still has 65 million monthly active players,
B
USINESS
I
NSIDER
(Apr. 4, 2017), http://www.businessinsider.com/pokemon-go-65-million-monthly-
active-players-2017-4.
[16:329 2017] The John Marshall Review of Intellectual Property Law 332
(good or bad). An oversight by the developers may have been the allocation of liability
the game creates by placing its users in potentially dangerous situations.
9
II. I
NTELLECTUAL
P
ROPERTY
The intellectual property behind the creation of Pokémon Go is quite interesting
and complex. The result and success of Pokémon Go can be traced back to the
relationship of the developers. The patents, copyrights, and trademarks utilized in the
development by these three companies have helped to revive Pokémon and start a
modern-day evolution of the original Pokémon concept.
Niantic, Inc.
Niantic, Inc., the company behind the previous augmented reality application,
Ingress, is back at it again. Ingress is also a location-based augmented-reality mobile
the individual players.
10
It is a world in which the Enlightened are trying to create
Resistance is attempting to prevent this.
11
The online activities merge into the real
world wit -
12
According to
some sources who have researched the intellectual property
global craze,
13
Niantic, Inc. owns three patents -based parallel
re :
Virtual Objects in a Parallel Reality Game this patent protects a
computer implemented method of transporting virtual objects in a virtual
world having a geography that parallels real-world geography.
14
This system
enables players of a parallel reality game, such as Pokémon Go, to interact
without having to meet in the same place at the same time, which can be
inconvenient.
15
ring
Communication Within a Location- this patent allows
for computer-implemented method of filtering communications for a
location-based game by receiving communication data for a plurality of
players, filtering messages between players based on signals associated with
9
Brian D. Wassom, How Pokémon GO Players Could Run Into Real-Life Legal Problems, T
HE
H
OLLYWOOD
R
EPORTER
,
(July 11, 2016, 12:36 PM), http://www.hollywoodreporter.com/thr-esq/how-
pok-mon-go-players-909869.
10
Game: Ingress (2016), https://www.ingress.com.
11
Casey Newton, augmented-reality game, available at
https://www.cnet.com/news/inside-ingress-googles-new-augmented-reality-game/.
12
Id.
13
See Susan L. Crockett, http://www.crockett-crockett.com/blog/2016/07/ip-law-newstop-orange-
county-intellectual-property-patent-law-firm.shtml.
14
Steve Brachmann, Pokemon Go developer Niantic owns three patens on location-based gaming,
IPW
ATCHDOG
, http://www.ipwatchdog.com/2016/08/10/pokemon-go-patents-location-based-gaming/
id=71648/.
15
Id.
[16:329 2017] Gotta Catch . . . a Lawsuit? 333
each player and adjusting the filtered communication data for each player
based on the constraints of each player.
16
-
feature similar to this.
-Cutting Concerns for
Client- this patent protects a
computer-implemented method involving the processing of a source file
defining a remote procedure call class specifying a plurality of remote
procedure call (RPC) methods and then executing cross-cutting actions
specified by decorator annotations contained within the source file in
conjunction with executing RPC methods.
17
In short, this allows for the
collection of location information.
18
The Pokémon Company
The Pokémon Company, the creators of the Pokémon universe, have copyrighted
works and trademarked names that are known all over the world, such as the name
Pokémon itself, GameFreak, and of course the names of the Pokémon creatures
themselves. Originally launching Pokémon in Japan in 1996, The Pokémon Company
is responsible for the mass marketing, licensing, brand management, and protection
of their pocket monster world.
19
Nintendo Co., Ltd.
Nintendo filed its trademark applications for Pokémon Go back in March 2016.
20
Nintendo will only continue to grow its universe by working in conjunction with
Niantic and The Pokémon Company to design new characters, graphics, and sounds
that play into the patents that Niantic has, with hopes of releasing theses into the
smartphone cyberspace.
A. -Game Elements
The freedom of creation also warrants the right to protection. For every creation,
there is the potential for infringement. AR allows for the device to display and produce
innovative and creative text, images, and sound. Specifically, the world of Pokémon
Go allows for the continuing creation of more Pokémon, landmarks, items, and worlds
as the developers release new updates to the game.
- -
purchases, Pokémon Go also presents the question of ownership of in-game elements.
The question of the extent, if at all, to which a user owns any particular in-game
element or item they have purchased with their own real world money continues to
16
Id.; see also Pramitha K, ,
available at https://www.virtualreality-news.net/news/2016/nov/17/what-pokemon-go-and-niantics-
patents-reveal-about-future-augmented-reality/.
17
Id.
18
Id.
19
Id.
20
Id.
[16:329 2017] The John Marshall Review of Intellectual Property Law 334
present itself. The answer to which can be found by looking to the fundamental
elements under the Copyrigh
21
22
1. - 201(a) of the Copyright Act?
Under § 102(a) of the Copyright Act, original works of authorship that are fixed
in a tangible medium of expression are subject to copyright protection.
23
The Act sets
24
:
(a) Literary Works;
(b) Musical works, including any accompanying words;
(c) Dramatic works, including any accompanying music;
(d) Pantomimes and choreographic works;
(e) Pictorial, graphic, and sculptural works;
(f) Motion pictures and other audiovisual works;
(g) Sound recordings; and
(h) Architectural works.
It is clear that mobile games such as Pokémon Go are copyrightable under the Act.
The analysis does not focus on this, but rather on the ownership of the individual
elements or items that are purchased within the game.
2. Do the Users of Pokémon -Game
Purchase?
Copyrights in a protected work are held initially by the creator(s) of the work.
25
expressly states that users and players have a limited,
revocable license to all in-game items with no ownership rights. The Terms of Service
relating to content ownership can be read below:
Niantic does not claim any ownership rights in any User Content, and nothing
in these Terms will be deemed to restrict any rights that you may have to use
and exploit your User Content. Subject to the foregoing, Niantic and its
licensors (including TPC and TPCI) exclusively own all right, title, and interest
in and to the Services and Content, including all associated intellectual
property rights. You acknowledge that the Services and Content are protected
by copyright, trademark, and other laws of the United States and foreign
countries. You agree not to remove, alter, or obscure any copyright, trademark,
21
17 U.S.C. § 102(a) (2017).
22
17 U.S.C. § 201(a) (2017).
23
17 U.S.C. § 102(a).
24
Id.
25
17 U.S.C. § 201(a).
[16:329 2017] Gotta Catch . . . a Lawsuit? 335
service mark, or other proprietary rights notices incorporated in or
accompanying the Services or Content
26
Yet, the disclaimer presents an issue regarding ownership rights with User
Content. What happens is a user decides to use real currency to purchase virtual
content through the game. By virtue of copyright law, the individual should now own
whatever it is he or she purchase. While the user would argue that by using his or her
own money to purchase in-game items, they in fact own the rights to use those items
however they see fit, the Developers have a stronger argument that seems to fall under
the Copyright Act. By creating the content and elements which help make up the game
(pokéballs and other items), the Developers have not given up an ownership interest in
these elements. They are simply allowing individuals to generated content
for either limited or indefinite use. Furthermore, the disclaimer that Niantic has
answers this question.
B.
Transcend Intro Virtual Reality Cyberspace
Another puzzling matter involves a combination of real property law, intellectual
property law, and cyberspace law. Does the placement of an AR element (Pokémon,
PokéStop, Poké-gym), within a virtual reality cyberspace, without the property
permission, affect that property
property in cyberspace?
27
ty, the most
well-known, is the exclusive right to possession. By placing these AR elements and
o
Developers have now affected property owner , exclusive right to possession of their
own property as against the world. Indeed, people began entering onto other
rivate property. What made national news is when individuals would go
into areas that were generally open to the public (museums, churches, cemeteries), but
would gather to these areas either after they had been closed off to the public for the
day or at inappropriate times (funerals).
28
looking for Pokémon to catch or places to
gather to catch these creatures. Consequently, this has resulted in concerns regarding
what rights individuals have to prevent others from entering onto or accessing ways
onto private property simply to play the game.
In response to these concerns, legal experts have begun to argue whether or not
owning property in the real world (our physical world), transcends or extends those
26
Id.
27
Robert C. Ellickson, Two Cheers for the Bunds-of-Sticks Metaphor, Three Cheers for Merrill
and Smith (E
CON
J
OURNAL
W
ATCH
8(3) Sept. 2011: 215-222), http://digitalcommons.law.yale.edu/cgi/
viewcontent.cgi?article=4601&context=fss_papers; see also Debra Cassens Weiss, Pokémon Go spurs
lawyers to stop and consider legal issues, ABA
J
OURNAL
(July 13, 2016, 8:00 AM),
http://www.abajournal.com/news/article/pokemon_go_spurs_lawyers_to_stop_and_consider_legal_iss
ues.
28
Allison Grande, , available at
https://www.law360.com/articles/886257/pokemon-go-maker-says-players-trespass-not-its-problem.
[16:329 2017] The John Marshall Review of Intellectual Property Law 336
property rights to the AR world along with any associated intellectual property
elements that the developers have placed on it?
29
The augmentation of a Poké-World
on top of a Google Map overlay, which per the Developers, is an accurate map of our
real world and locations, has not forfeited individuals property rights, simply because
the individual decides to enter cyberspace through their smartphone or device. Indeed,
in order to play the game, the game requires a user to sign in with their Google email
account to grant the application access to the GPS-location services of the device, which
allows for the game to properly overlay the augmented world on top of the physical
GPS coordinates.
to play the game, it cannot be said that he or she is forfeiting their privacy rights or
even property rights because they are told up front what the game is requesting access
to. However, there are others who feel that this is not a safe harbor for indiv
giving up their rights.
C. Property Owners have the Right to Refuse Permission to the Developers Creation and
Placement of AR-Elements on Their Property
As Developers update the game, these updates are pushed out to the App Store
and Android Market. Of course, users will update the game. Part of these updates have
included the fixing of bugs, methods to which the Developers track movements
within the game, and the addition of new Poké-stops and other AR elements.
But,
what happens when the addition of elements are placed on or near private property
further, do property owners have the right to refuse permission to developers if he or
she does not want an AR creature or object placed on his or her property? In the terms
of service, Niantic has relieved itself of any liability resulting from the usage of the
game, whether it be property damage or personal injury, but should this be a complete
blanket to liability when it intentionally puts AR elements on or near private property
that is foreseeable to cause other players to come onto said property? Part of property
placement of AR
objects on his or her property in cyberspace?
In response to complaints made over the past year, developers have addressed
this by allowing individuals to fill out an online form requesting their property be
é-
30
But, for those individuals
who do not play the game whose property has been automati é-
Arguably, they have not consented to this,
and it would seem some form of notice would be appropriate. This then shifts the
burden back to the Developers.
29
Id.
30
Jeff Grub, Pokémon Go: How to request or remove a PokéStop or Gym, available at
https://venturebeat.com/2016/07/14/pokemon-go-how-to-request-or-remove-a-pokestop-or-gym/; see
also NBC
N
EWS
,
http://www.nbcnews.com/tech/video-games/pokemon-go-creators-working-remove-problematic-
pokestops-n619856.
[16:329 2017] Gotta Catch . . . a Lawsuit? 337
At the present time, Developers have taken reasonable steps by providing an
- -
game activity.
31
D.
Protecting its Trademarks
Nintendo is most known for its success and leadership in the video game arena.
However, its legacy continues to thrive by means of the hundreds of memorable and
nostalgic characters it has created that millennials have grown up playing with. Its
characters such as the Mario & Luigi, Zelda, Pikachu, and many others have become
such an instrumental part of the growth of the video game industry. Nintendo stands
to make a lot of money if it chooses to license more of its characters to Niantic and The
Pokémon Company for continued use in its games on smartphones, consoles, and other
AR-related concepts.
In terms of Nintendo s, the continued licensing of its characters, as
well as the addition of newer generations of Pokémon, have led some businesses to
believe, mistakenly, that Nintendo itself created the game or has a significant
ownership stake in the game. The trend over the past year has been businesses
utilizing these trademarked characters on signs outside the store to inform people that
they a é-
Despite the continued use of these trademarked characters, the continued
licensing of these characters may allow for individuals to claim the protections under
the fair use doctrine.
32
To be protected under fair use, there are four factors that must
be considered: (1) the purpose and character of the use, (2) the nature of the
copyrighted work itself, (3) the proportion of the work used/taken in relation to the
whole, and (4) the effect of such use on the potential market for that work, specifically
the video game, virtual reality industry. It is possible that fair use could potentially
shield individuals and businesses who choose to use these trademarked characters on
their business advertisements outside the store. Only time will tell how strong this
doctrine still holds in cyberspace.
While the game encourages people to get off the couch and engage in physical
activity, there have been concerns in the civil and criminal realms that must be
addressed now before similar games, applications, and concepts are created. Civil and
Criminal Liability of The Developers and Players
31
Id.
32
17 U.S.C. § 107 (LEXIS through Pub. L. No. 114-219); Harper & Row, Publishers, Inc. v.
Nation Enterprises., 471 U.S. 539, 544 (1985).
[16:329 2017] The John Marshall Review of Intellectual Property Law 338
E. The Developers Have Created Liability Under the Attractive Nuisance Doctrine
Ohio is one of several states that have adopted the attractive nuisance doctrine.
33
Ohio courts have consistently held that children have a special status in tort law and
that duties of care owed to children are different from duties owed to adults.
34
Under
the doctrine, landowners are required to eliminate dangerous conditions on their land
which attract children. The rationale is that children may not appreciate or
understand the danger the land or item on the land brings. An individual who fails to
correct or eliminate that danger on their property is civilly liable for any injury the
child sustains on it, even if the child was trespassing. In conjunction, the Bennett case
also extended the doctrine to adult rescuers injured or killed while attempting to assist
or rescue children endangered by an attractive nuisance.
35
So, the obvious question that has presented itself is, does placing an augmented
invoke the attractive nuisance doctrine? Additionally, whom does the doctrine shield
or not shield?
Property Owners
Should the property owner, whether it be the owner of a business or private
residence, be held civilly liable due to their failure to reduce or eliminate the danger
? -game items that are placed
at certain locations by other players, which attract certain Pokémon to the area. This
feature adds an additional layer to this puzzle because other users are able to place
them, which potentially makes users liable for the trespassing of other users. In
response, is it even fair to require property owners to be aware of the augmented reality
around them? How far would this duty extend? Should it extend to just Pokémon
placed on their property without their consent? What if their property is transformed
into a PokéStop without their consent?
The main question this doctrine invokes is whether these property owners will
eventually have a duty to warn others that there are Pokémon on their property. If
this duty comes to pass, another troubling issue presents itself: How frequently should
the property owner check this game to see if new Pokémon have been placed on their
property?
Mobile Users
Pokémon era playing the Gameboy
games, watching the TV series, and even trading collector cards, Pokémon Go was an
33
Bennett v. Stanley, 748 N.E.2d 41 (Ohio 2001); see also R
ESTATEMENT
(S
ECOND
)
OF
T
ORTS
§ 339 (1965)
;
see also Blackburn v. Broad Street Baptist Church, 305 N.J. Super. 541 (1997); Brady v.
Chicago & N.W.R. Co., 265 Wis. 618, 625-26 (1954).
34
Id.
35
See Landowner or Tenant Could Be Responsible for Harm to Trespassing Children, Ohio State
Bar Association, available at https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/
LawYouCanUse-217.aspx; Kevin Daley, Lawyer Points Out Pokémon Go Might Be Illegal, T
HE
D
AILY
C
ALLER
(July 11, 2016, 3:44 PM), http://dailycaller.com/2016/07/11/lawyer-points-out-pokemon-go-
might-be-illegal/.
[16:329 2017] Gotta Catch . . . a Lawsuit? 339
extension of this phenomena.
36
However, for those individuals who did not grow up in
that generation or never got into it to begin with, the appeal of Pokémon
predictable or sudden.
who have
smartphones. As of July 2016, on average, children are getting their first smartphones
at around age 10.
37
For some, children even as young as 7 get their first smartphone.
38
appreciate the risks associated with having almost unlimited access to information and
the internet.
To add to this, there are children who want to explore different games on these
phones by downloading fun and exciting adventure games. As it relates to Pokémon
Go, kids are able to go out with their friends and catch these creatures. However, there
are times where these children going out on their own without parental supervision
and may find themselves in places or situations , absent a
parent or even a smartphone.
plays these games, there should still be some
to join or register to play.
39
For example, there have been reports that some children
playing the game have even wandered into potentially hazardous areas such as
construction sites.
40
Lastly, what happens if, regrettably, the child becomes a victim of criminal
activity?
41
This type of child engagement invites not only danger, but rescue. Ohio
also shields adult rescuers if in the course of rescuing a child, they are injured. As
such, the adult is treated as a child and is protected. It is safe to say that perhaps this
smartphones, as it applies to new games.
36
Quentin Hardy, Pokémon , N.Y.
T
IMES
, July 13, 2016,
https://www.nytimes.com/2016/07/14/technology/pokemon-go-millennials-first-nostalgia-blast.html;
see also Amy Williams, How Do Smartphones Affect Childhood Psychology, available at
https://psychcentral.com/lib/how-do-smartphones-affect-childhood-psychology/.
37
Brian X. Chen, , N.Y.
T
IMES
, July 20,
2016, https://www.nytimes.com/2016/07/21/technology/personaltech/whats-the-right-age-to-give-a-
child-a-smartphone.html.
38
Id.
39
Maria LaMagna, Should you let your kids play Pokémon Go?, available at
http://www.marketwatch.com/story/do-your-kids-play-pokemon-go-what-to-watch-out-for-2016-07-
11; see also Kelsey Sheehy, Pokémon Go: How to keep your kids and your data safe, available at
https://www.usatoday.com/story/money/personalfinance/2016/07/23/pokmon-go-how-keep-your-kids-
data-safe/87413004/#.
40
Scott Anderson, Kids Are Trying To Play Pokémon GO at a Construction Site in front of the
High School , available at https://patch.com/wisconsin/oakcreek/kids-are-trying-play-
pokemon-go-construction-site-front-high-school-heres-why.
41
Kelsey Sheehy, Pokémon Go: How to keep your kids and your data safe, available at
https://www.usatoday.com/story/money/personalfinance/2016/07/23/pokmon-go-how-keep-your-kids-
data-safe/87413004/#; see also Steph CockRoft,
Pokémon Go app craze could be used by pedophiles to lure unsuspecting young players, available at
http://www.dailymail.co.uk/news/article-3684228/Is-world-s-dangerous-game-terrifying-Pokemon-
app-craze-killed-one-person-make-children-easy-prey-PAEDOPHILES-s-coming-Britain-soon.html;
see also Vanessa Borge, , available at
http://miami.cbslocal.com/2016/07/13/police-warn-of-pokemon-go-dangers-to-players-kids/.
[16:329 2017] The John Marshall Review of Intellectual Property Law 340
The Developers
Lastly,
the game, Niantic, Inc., Nintendo, Ltd., and The Pokémon Company while creating an
innovative and futuristic style of gaming have also created the risk for personal injury
and criminal activity associated with augmented reality gaming. Within the first few
weeks of its launch, the Developers have created physical hazards on private property,
public streets, and in other public places. As it applies to the Developers, should they
be held civilly, and potentially, criminally liable for creating what at times can be
described as obvious risks that result from the exercise of the free judgment of
individuals who play the game? It would seem that this is a bit of a stretch, as the
Developers have created a platform to which people choose to use how they see fit. It
would almost be a hindrance on creation if the Developers were to be held liable for
each and every activity that arises from people exercising poor judgment.
In response to a variety of strange news stories and reports of criminal activity
and personal injury people were experiencing from playing the game, Niantic
implemented an auto-generated disclaimer that pops up every time the individual
opens the Pokémon
Additionally, users must also agree to the very fine print stating they cannot enter
. Furthermore, Niantic, expressly
disclaims that it is not liable for any property damage, injuries, or deaths that result
while playing. However, does this seem to general and/or too anticipated if this type
of disclaimer needs to be stated? Arguably, they should not be held responsible for the
poor decisions made by its users, but on the other hand, it seems as if they predicted
that behavior of this type would occur.
Unfortunately, it takes a crazy case to be brought before a court for any sort of
decision or analysis to proceed any further.
F. Pokémon Trainers Around the Country Are Now Trespassing on Private Property
The Pokémon Go craze has people committing crimes (even unintentionally) or
being a victim of a crime, ranging from trespass, to robbery, stabbing, and even
domestic issues with cheating partners. So, what happens when an individual playing
the game, finds themselves on private property or public property that is limited to the
general public after certain times (e.g. cemeteries)? People are now wandering into
yards, driveways, cemeteries, museums, churches, alleys, and even off-limit sites in
search of these Pokémon. This has led to prompt warnings that trespassers could be
arrested, or even worse, seriously injured for coming into contact with an armed
property owner.
42
2911.21, the crime of trespass is a fourth-degree
misdemeanor. An individual commits a trespass when they enter the property of
another without permission. The only requirement is that the person physically
42
Beatriz Costa-Lima and Mary Hudetz, The 'Pokémon Go' Files: 10 Tales of Trespass, Robbery,
Murder and More, I
NSURANCE
J
OURNAL
, (July 15, 2016), http://www.insurancejournal.com/news/
national/2016/07/15/420198.htm.
[16:329 2017] Gotta Catch . . . a Lawsuit? 341
. In Ohio, liability depends on the
an individual into
43
private property owners who welcome individuals on their property playing the game,
should take measures to ensure that they are protected while on that property.
However, arguably, should property owners even be held to that standard to monitor
at all times who is coming onto their property?
Users
A person or player who enters onto the property of another while playing the game
(without consent) is trespassing. In the event a property owner takes issue with this,
Pokémon
the game should not supersede
or act as an exception to laws that are in place and adequately cover situations like
this.
Property Owners
The most troubling issue, of course, is that property owners clearly have not given
Developers express consent to digitally placing these creatures on their property,
which then gives people the opportunity and ability to then come onto the properties
of another. Ownership of property in the real world is evidenced by the recording of
deeds and other title instruments. However, in cyberspace, should those documents
have the same weight? In a scenario where people are coming onto the physical
property of another based off the digital interface and coding of a smartphone game, it
is possible that these documents should hold the same weight. To counter, is the
technically
of its use in this type of AR game? No.
A better argument would be that the right to quiet enjoyment and use of the
property is being interfered with, and as such, those same rights do extend into
cyberspace.
Developers
While the developers have expressly disclaimed any and all liability in their initial
login disclaimers, people are still able to exercise their own judgment that cannot be
allocated to the liability of the Developers. People are going to do what they are going
to do.
Terms of Service a contract or implied consent for the developers to constantly update
its Poké-Database, which may include the possibility of creatures and people ending
up on your property? -
trespass? Some states have enacted cyber-crime statutes, would agree in the
affirmative. However, at the end of the day, courts have a new issue before them:
43
Premises liability in Ohio: your rights depend on your status, C
OLLEY
S
HROYER
A
BRAHAM
,
available at http://www.colleyshroyerabraham.com/blog/2015/04/premises-liability-in-ohio-your-
rights-depend-on-your-status.shtml.
[16:329 2017] The John Marshall Review of Intellectual Property Law 342
Whether augmented reality or cyber-space has caught up to our modern-day laws?
While it is still complex, there is no reason why modern-day statues should also extend
into cyberspace.
G. Should Pokémon Go Fall Under State Negligence Laws?
A negligence claim is a civil lawsuit that a person can bring against another
individual who has caused harm by failing to take the degree of care that an ordinary
careful and reasonable person would take under the same or similar circumstances,
those circumstances being a person playing an AR game that allows a person to wander
freely and engage with other people and properties.
In Ohio, there are four elements to recover on a negligence claim: (1) Duty, (2)
Breach of Duty, (3) Causation, and (4) Damages:
44
Duty of Care
First, the individual must prove that the defendant owed a duty of care. In the
case of Pokémon Go, it is possible the standard
The question
presented is dependent on who the victim was and who was allegedly acting
negligently.
In the event the player brings a negligence suit against a property owner, it would
make sense that they would have to show the property owner owed them a duty of a
reasonable property owner, albeit private or public. But, does it really make sense to
hold a property owner responsible for the actions taken by an irresponsible or naïve
player who fails to use their common sense when trespassing on their property for
what purpose? To catch invisible creatures that only exist in a mobile phone game,
but not in the real world? Should the property owner have a duty to know that
augmented elements such as Pokémon and PokéStops have been placed near or on
their property? Should they have a duty to report this to the Developers for removal
or to higher authorities, or even placing warning signs on their property?
Unfortunately, this is not a question that will be immediately answered until
someone decides to take their case, whatever the facts may be, to the court.
Breach of Duty
Second, the individual must prove that the defendant breached that duty. A
breach occurs when the defendant failed to live up to that standard. Again, what sort
of breach should courts look for? How can a mobile game player breach a standard
that technically has never been imposed with smartphone games? How can a property
owner breach a standard that a property owner technically has never been held to
when it comes to people playing a mobile game . . . that involves their property? Does
the property owner have a viable defense of assumption of the risk?
Causation
Third, the breach of that duty must have been both the actual cause and
proximate cause of the harm.
44
Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assocs., 844 N.E.2d 1160 (Ohio 2006).
[16:329 2017] Gotta Catch . . . a Lawsuit? 343
analysis ut for the act or failure to act, the harm would not have occurred.
Proximate cause is the foreseeability of that injury in the chain of events.
With Pokémon Go
it is foreseeable that people could potentially trespass on an . For
example, a gathering in Central Park in New York last year, where hundreds of people
gathered in an attempt to catch a rare Pokémon, Vaporeon, which resulted in a
stampede.
45
Damages
Lastly, there must be damages, whether they be personal injury, property
damage, or both. There has been serious injuries and property damage as a result of
this games launch and success.
At the end of the day, who can be held liable for the injuries, stupidity, naivety,
carelessness, and excitement of these players? It is clear that the players have a duty
to be aware of their surroundings at all times, but the line is a bit greyer when it comes
to property owners and the developers.
Here are some interesting headlines from the past year:
46
Pokémon GO: Rare Pokémon Appearance Causes Stampede in Central Park
47
Pokémon Go Craze Raises Safety Issues
48
Death By Pokémon? Public Safety Fears Mount As Pokémon Go Craze
Continues
49
NYPD Shares Pokémon Go Safety Tips
50
45
Joyce Chen, Pokémon Go: Crowd Stampedes Through Central Park After Rare Vaporeon
Sighting, US
W
EEKLY
(July 16, 2016, 3:24 PM), http://www.usmagazine.com/celebrity-
news/news/pokemon-go-crowd-stampedes-after-spotting-rare-pokemon-w429525; see also Bryan
Menegus, Watch a Stampede of Pokémon Go Players Descend on Central Park, G
IZMODO
(July 15,
2016, 4:29 PM), http://gizmodo.com/watch-a-stampede-of-pokemon-go-players-descend-on-centr-
1783752094?utm_campaign=socialflow_gizmodo_facebook&utm_source=gizmodo_facebook&utm_me
dium=socialflow.
46
Dan Claredndon, 25 Craziest Pokémon Go News Stories Woman Claims Pokémon Character
Raped Her,
WETPAINT
(Aug. 12, 2016), http://www.wetpaint.com/pokemon-go-crazy-news-1506550/.
47
Riley Little, Pokémon GO: Rare Pokémon Appearance Causes Stampede in Central Park,
G
AME
R
ANT
,
http://gamerant.com/pokemon-go-vaporeon-central-park/.
48
Sarah E. Needleman, , T
HE
W
ALL
S
TREET
J
OURNAL
(July 13, 2016), http://www.wsj.com/articles/pokemon-go-craze-raises-safety-issues-1468365058.
49
James Rogers, craze continues,
F
OX
N
EWS
T
ECH
(July 14, 2016), http://www.foxnews.com/tech/2016/07/14/death-by-pokemon-public-
safety-fears-mount-as-pokemon-go-craze-continues.html; see also Maria Vultaggio,
or Warns, I
NTERNATIONAL
B
USINESS
T
IMES
(July
15, 2016, 12:34 PM), http://www.ibtimes.com/pokemon-go-safe-death-pokemon-coming-law-professor-
warns-2392014.
50
Evan Slead, NYPD shares Pokémon Go safety tips, E
NTERTAINMENT
W
EEKLY
(July 13, 2016,
12:00 PM), http://www.ew.com/article/2016/07/13/nypd-acts-officer-jenny-sharing-pokemon-go-safety-
tips.
[16:329 2017] The John Marshall Review of Intellectual Property Law 344
Four NYPD Cops Are Under Investigation for Apparently Playing Pokémon
Go On-Duty
51
Pokémon
52
Pokémon Go Players Find Corpse in San Diego Park
53
Men Fall From Cliff Playing Pokémon Go
54
Man Stabbed While Playing Pokémon Go But Continues Playing
55
This Bakery Is Charging Different Prices Pokémon
56
Police: Someone Threw Fireworks at Pokémon Go Players
57
Trio Gets Locked in Cemetery While Playing Pokémon Go
58
Daughter Hit By Car While Playing Pokémon Go
59
Cheating Boyfriend Says His Girlfriend Caught Him Through Pokémon Go
60
Woman Discovers Body While Playing Pokémon Go
61
Holocaust Museum to Visitors: Please Stop Catching Pokémon Here
62
51
Andy Cush, Four NYPD Cops Are Under Investigation for Apparently Playing Pokémon Go
On-Duty, G
AWKER
(Jul. 15, 2016, 10:40 AM), http://gawker.com/two-nypd-cops-are-under-
investigation-for-apparently-pl-1783733181.
52
Lee Moran, , T
HE
H
UFFINGTON
P
OST
(Jul. 17, 2016, 9:14 AM), http://www.huffingtonpost.com/entry/shots-pokemon-go-florida_us_
578b6de5e4b03fc3ee512f13.
53
, L
OS
A
NGELES
T
IMES
(Jul. 15, 2016, 11:45 AM), http://www.latimes.com/local/lanow/la-me-ln-san-diego-dead-body-
pokemon-go-20160715-snap-story.html.
54
Janissa Delzo, Men fall from cliff playing Pokémon Go, CNN (July 16, 2016, 9:43 AM),
http://www.cnn.com/2016/07/15/health/pokemon-go-players-fall-down-cliff/.
55
, ABC
7
(Jul
Y
15,
2016),
http://abc7.com/news/pokemon-go-player-stabbed-keeps-playing/1428184/; Richard Thompson,
'Pokémon Go' fan stabbed while playing game, continues mission to 'catch 'em all' after attack, WHIO
(July 13, 2016, 3:15 AM), http://www.whio.com/news/news/national/pokemon-go-fan-stabbed-while-
playing-game-continue/nrxbY/?ecmp=whiotv_social_facebook_2014_sfp.
56
Dave Walsh,
, U
PROXX
(July 14, 2016), http://uproxx.com/life/bakery-pokemon-go-prices-teams/.
57
Associated Press, WFTV 9 ABC (July 13, 2016), http://www.wftv.com/news/local/police-
someone-threw-fireworks-at-pokmon-go-players/399294124.
58
ayers, NBC
10 (July 13, 2016, 4:41 PM),
http://www.nbcphiladelphia.com/news/local/Pokemon-Go-Cemetery-Police-Technology-Smartphone-
Weird-News-386678101.html.
59
, ABC
13,
http://abc13.com/news/woman-daughter-hit-by-car-while-playing-pokemon-go/1425666/.
60
David Moye, Cheating Boyfriend Says His Girlfriend Caught Him Through Pokémon Go, T
HE
H
UFFINGTON
P
OST
(July 14, 2016, 1:25 PM), http://www.huffingtonpost.com/entry/man-caught-
cheating-pokemon-go_us_5787b9a1e4b0867123e01e5c.
61
Mary Bowerman, , USA
T
ODAY
(July
11,
2016),
http://www.usatoday.com/story/tech/nation-now/2016/07/11/woman-playing-pokemon-go-
discovers-dead-body-river-playing-game/86939056/.
62
Andrea Peterson, Holocaust Museum to visitors: Please stop catching Pokémon here, T
HE
W
ASHINGTON
P
OST
(July 12, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/07/12/
holocaust-museum-to-visitors-please-stop-catching-pokemon-here/ (Pokémon Go players visit
Holocaust Museum to catch Pokémon); see also Neal Augenstein, Who thought it was a good idea to
, WTOP (July 15, 2016, 10:17 AM),
[16:329 2017] Gotta Catch . . . a Lawsuit? 345
Pokémon Go Wants to Be the Exercise App That Actually Works
63
H. What Crazy, Future Battles Can We Expect to See in the Augmented Reality Arena?
After the success of Pokémon Go, will we start to see more developers trying to
compete and create their own AR applications, games, and devices? It seems that the
global success of this game will spur inventors to play catch up. It will continue to
create, present, and entangle multiple areas of law, specifically the boundaries of
cyberspace law, intellectual property law, real property law, and civil and criminal
liability.
Yet, the same issues will remain until it forces legislators and courts to continue
addressing the grey areas, in that our laws have not yet caught up to cyberspace, or in
this case, AR. Our streets, homes, businesses, and public places will continue to be a
hub for criminal activity and injuries.
This will hopefully force legislators and Courts to face the reality that our laws
must adapt to the digital age. So the question is, how do we expand our statutes and
laws into the ever-growing realm of cyber-space? Do we need to create new statutes
specifically targeted at AR and cyber-crimes such as playing Pokémon Go to target
potential victims/players? I believe our statutes need to be amended or inclusive of
cyberspace and augmented reality moving forward.
Time will tell.
I. What does the Battlefield of Augmented Reality Look Like Moving Forward?
1. Class-Action Lawsuit: In Re Pokémon Go Nuisance Litigation
Since the release of the game, three Plaintiffs have come forward: Jeffrey Marder
of New Jersey, Scot Dodich and Jayme Gotts-Dodich of Michigan, and the Villas of
Positano Condominium Association, Inc.
have since been consolidated
64
into a class-action diversity lawsuit against Niantic,
http://wtop.com/mobile/2016/07/who-thought-it-was-a-good-idea-to-put-pokemon-go-in-the-holocaust-
museum/; 'Pokémon Go': 10 Strangest Pokéstop Locations, R
OLLING
S
TONE
(July 13, 2016),
http://www.rollingstone.com/culture/pictures/pokemon-go-10-worst-PokéStop-locations-20160713;
Pokémon Go: Churches encouraged to welcome visiting players, BBC (July 19, 2016),
http://www.bbc.com/news/uk-36806795 (Church of England signs up to be a PokéStop, hoping to
encourage players to come through its doors); Melissa Chan, Pokémon Go Players Anger 9/11
Memorial Visitors: 'It's a Hallowed Place', T
IME
(July 12, 2016), http://time.com/4403516/pokemon-
go-911-memorial-holocaust-museum/ (players flocked to the 9/11 Memorial in New York City).
63
Julia Belluz, Pokémon Go wants to be the exercise app that actually works, V
OX
(July 14, 2016,
2:21 PM), http://www.vox.com/2016/7/12/12159198/pokemon-go-exercise-increase.
64
As of November 23
rd
, 2017, all three individual lawsuits brought by the Plaintiffs have been
consolidated into the current case, In Re Pokémon Go Nuisance Litigation, No. 16-cv-04300, 2016 WL
6126786 (N.D. Cal. Sept. 23, 2016).
[16:329 2017] The John Marshall Review of Intellectual Property Law 346
pending before the U.S. District Court of the Northern District of California.
The class action, In Re Pokémon Go Nuisance Litigation,
65
was filed on July 29
th,
2016 by the initial Plaintiff, Jeffrey Marder, individually and on behalf of all others
similarly situated. It Is worth noting that amount in controversy exceeds $5,000,000.00
and there is diversity between at least one Plaintiff and a Defendant pursuant to
66
An Amended Complaint was filed on November 25
th
,
2016 against the Defendants.
67
A.
1. Plaintiff: Jeffrey Marder, New Jersey
Jeffrey Marder was the first individual to come forth with a complaint against the
Defendants.
68
Mr. Marder is a resident of West Orange, New Jersey and has alleged
near his property has interfered with the use and enjoyment of his property and caused
significant harm to him.
69
Specifically, Mr. Marder noticed that strangers were gathering outside of his
home and holding up their smart phones as if they were photographing him and/or his
property.
70
Simultaneously, people began knocking on his door and asked him for
permission to enter his private backyard, as there wer
2. Plaintiff: Scott Dodich and Jayme-Gotts-Dodich
The second individuals to come forward were Plaintiffs Scott Dodich and Jayme
Gotts-Dodich in mid-August.
71
They are residents of St. Clair Shores, Michigan.
72
-de-
73
Shortly after the release of the game, the number of visitors to the Park increased
significantly, from an estimated 15-20 visitors at any given time, to at least several
hundred.
74
Despite the posted signs indicating this area was private property, individuals
Dodic
of their residence.
75
65
See id.
66
Complaint, In Re Pokémon Go Nuisance Litigation, No. 16-cv-04300 at ¶ 8, Id.
67
In Re Pokémon Go Nuisance Litigation, No. 16-cv-04300, 2016 WL 6126786.
68
David K. Li and Priscilla DeGregory, N
EW
Y
ORK
P
OST
(Aug. 2, 2016), http://nypost.com/2016/08/02/the-hero-whos-taking-pokemon-go-fools-to-
court/.
69
Complaint, In Re Pokémon Go Nuisance Litigation, No. 16-cv-04300 at ¶ 10.
70
Id. at ¶ 29.
71
Id. at ¶ 41.
72
Id. at ¶ 34.
73
Id.
74
Id.
75
Complaint, In Re Pokémon Go Nuisance Litigation, No. 16-cv-04300 at ¶ 35.
[16:329 2017] Gotta Catch . . . a Lawsuit? 347
In light of the repeated requests made on the designated request form made
ear
3. Plaintiff: The Villas of Positano Condominium Association, Inc.
The third group to bring a complaint against the Defendants were The Villas of
It is a non-profit corporation
incorporated in the State of Florida.
76
The membership of the Association is comprised
of the owners of the condominiums, located in Hollywood, Florida.
77
The Association
collected the periodic association fees that each owner pays for the facilities, insurance,
and community maintenance.
78
The claims brought are the same as the previous two
Plaintiffs. Shortly after the release of the game, residents became aware of hundreds
of non-residents coming onto its private property at odd hours in the morning and
evenings.
79
Defendant Niantic, Inc. has designated the property as a Pokéstop labeled
-influenced aesthetic.
80
Additionally, Niantic programmed the game to spawn certain rare Pokémon at the wee
hours of the morning, which thereby resulted in increased traffic of non-residents on
the property.
81
People would show up at early hours in the morning, park illegally,
block driveways, and interact at very high volumes that would prevent residents from
getting to sleep at night.
82
The condition of the property also suffered as garbage was
left out on the property.
83
Additionally, as a result of no public bathroom facilities, a
few residents discovered non-residents using the property as their own private toilet
late at night.
84
The Association also contacted Defendant Niantic through its website, requesting
Niantic remove it as a PokéStop, which has resulted in trespassers, the deteriorating
another automatic reply saying it would be looked into, yet, and it is still designated
as a PokéStop in the game. Consequently, the Plaintiffs have hired off-duty police
officers to patrol the property into early hours in the morning.
85
As such, the Association has standing to bring this action on behalf of its
members.
86
76
Id. at ¶ 12.
77
Id.
78
Id.
79
Id. at ¶ 30.
80
Id. at ¶ 31.
81
Complaint, In Re Pokémon Go Nuisance Litigation, No. 16-cv-04300 at ¶ 31.
82
Id.
83
Id. at ¶ 31.
84
Id. at ¶ 31.
85
Id. at ¶ 32.
86
Id. at ¶ 12.
[16:329 2017] The John Marshall Review of Intellectual Property Law 348
B.
1. Defendant: Niantic, Inc.
As mentioned earlier in this Article, Defendant Niantic, Inc. is a software
development company headquartered in San Francisco, California.
87
In 2002, the
company formed under the name Niantic Labs, an internal startup company at Google,
Inc. and became its own independent entity in October 2015.
88
Niantic, Inc. is the
developer and publisher of Pokémon Go and received a percentage of all revenues
generated by the game.
89
2. Defendant: The Pokémon Company
Defendant, The Pokémon Pokémon
responsible for the marketing and licensing of the Pokémon franchise.
90
It is
headquartered in Tokyo, Japan and was established as a joint venture by Nintendo
and Game Freak/Creatures, two other companies with copyright ownership in
Pokémon.
91
3. Defendant: Nintendo Co., Ltd.
is a multinational
consumer and electronics software company headquartered in Kyoto, Japan.
92
Originating as a playing card company in 1889, Nintendo entered the video game
93
It
holds a 32% ownership stake in Defendant Pokémon Company and received a
percentage of all revenues generated by the Pokémon Go game.
94
C. What Are the Alleged Claims?
1. Nuisance
in
the use and enjoyment of their property has been interfered with or invaded in some
way and causes significant harm.
95
Plaintiffs have alleged that through the designation of specific GPS coordinates,
Defendant Niantic intentionally placed Pokémon, Pokéstops, and/or Pokémon gyms
on or near the properties of the Plaintiffs and other members of the proposed Class,
87
Complaint, In Re Pokémon Go Nuisance Litigation, No. 16-cv-04300 at ¶ 13.
88
Id.
89
Id.
90
Id. at ¶ 14.
91
Id.
92
Id. at ¶15.
93
Complaint, In Re Pokémon Go Nuisance Litigation, No. 16-cv-04300 at ¶ 15.
94
Id. at ¶ 15.
95
Nuisance, Legal Dictionary, available at http://legal-dictionary.thefreedictionary.com/
Tort+of+nuisance (2017).
[16:329 2017] Gotta Catch . . . a Lawsuit? 349
which has caused numerous intrusions, property damage, threats of physical harm,
and costs to clean up, maintain, and secure the properties.
96
2. Trespass
the land of another and causes a thing or a 3
rd
party to enter onto the property.
97
Specifically, by placing specific GPS coordinates on or near the properties of the
Plaintiffs, Defendant Niantic has caused Pokémon, Pokéstops, and Pokémon Gyms to
be placed on or near the properties allowing for multitudes of people to enter onto
Plaintif
98
3. Unjust Enrichment
Resulting from the popularity of Pokémon Go, Defendants have created a more
immersive gaming experience which in turn has continued to increase the popularity
and profitability of the game.
99
Specifically, this has encouraged millions of users to
enter onto the properties of Plaintiffs and other members of the proposed Class.
100
As mentioned earlier, Defendants continue to receive a percentage of all revenues
generated by Pokémon Go.
As of May 2
nd
, 2017, a Stipulation with a Proposed Order Requesting the
Modification of Hearing Date for Pending Motions and Initial Case Management
Conference has been filed by Defendant Niantic, Inc., in lieu of the Case Management
Conference set for June 15
th
, 2017.
The arguments set forth in the Complaint will presumably set forth precedent at
the end of this case for future gaming applications incorporating the use of augmented
reality and coding interfaces through mobile devices.
96
Complaint, In Re Pokémon Go Nuisance Litigation, No. 16-cv-04300 at ¶¶ 39-40.
97
Id. at ¶ 48.
98
Id. at ¶¶ 49-50.
99
Id. at ¶ 57
100
Id.
