Pokemon Vs. Pokellector In Trademark/Copyright Dispute

[Mike]

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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[joew771]

I agree with pokemon on this one. They aren't saying he can't post images of their cards, only that he can't put his brand on the images or use a logo similar to theirs. Since many of pokemon's customers are children and may not be able to distinguish one from the other and may assume that pokemon endorses or runs the site, (which is what they actually claim in the lawsuit), that seems perfectly reasonable. There are plenty of other sites that sell pokemon cards that don't do what this site does, which is to basically use the pokemon trademarks to sell second hand cards, and they aren't being sued.

No one is saying that images of the cards can't be used, only misleading logos and branding. Think about a used car site. If the logo looked like the Jaguar logo, they would get sued in a second, for misleading the public or trademark infringement or whatever they sue for, but Jaguar isn't going around suing everyone who puts a pic up of a Jaguar for sale.

[ddoking007]

I still don't get what the fuss is about all the guy is doing is making it hard for people to Copy the card image to there computer and mass print the images.... I use to do that With some old rare cards that I trade as real ones back in elementary.... so I'm with the Pokellector on this cause unless you know what the water mark is you can't place the images back to normal and its not really re-branding.. the images and type setting may be similar but you could argue that with a lot of logo also... remember when Apple tried to copy right the Apple over all types of shit.. its the same thing here...

[joew771]

I still don't get what the fuss is about all the guy is doing is making it hard for people to Copy the card image to there computer and mass print the images

That's not what the fuss is about. Pokemon puts copies of the cards up on their own website without any 'extra' branding and in a higher resolution than most of the ones on the pokellector site, so they aren't worried about fakes necessarily. It's just that this guy is misleading people, whether intentionally or unintentionally, that his site is endorsed by pokemon, when it isn't.

[ViperScale]

I still don't get what the fuss is about all the guy is doing is making it hard for people to Copy the card image to there computer and mass print the images

That's not what the fuss is about. Pokemon puts copies of the cards up on their own website without any 'extra' branding and in a higher resolution than most of the ones on the pokellector site, so they aren't worried about fakes necessarily. It's just that this guy is misleading people, whether intentionally or unintentionally, that his site is endorsed by pokemon, when it isn't.

I think his point is that putting a logo on the images makes it impossible to mistake the cards for real if they were printed out. aka making harder to use the images to counterfeit. It isn't like he is making and selling the cards himself, if i buy a honda and do my own logo artwork on it.... is that against the law? No.

I have not been to the site you are talking about so unless he is trying to mislead people into thinking he is pokemon and not a fan base site than maybe there would be an issue... but is he selling anything? Or is this just a site for people to look at stuff.

Back in the day when i played EverQuest my guild got alot of worldwide first and we used to post images of the items that drop on fan sites so people can see what bosses dropped... i don't see a difference here.

[joew771]

Him putting his own branding on the cards isn't so it is harder to counterfeit them, it is for his own advertising, and it looks like the pokemon logo and even uses the pokeball symbol. Many sites post images of pokemon cards. Nintendo (who owns pokemon) does that themselves on their own site, so they aren't worried about the counterfeiting problem.

And yes, he is selling used pokemon cards.

An example of the branding he uses on the card images with the pokeball. And the actual pokeball symbol.



And his logo and the actual pokemon logo.



Though it seems he may have smartened up some, because his logo now looks like this.