Pokemon Go has been nothing short of an international phenomenon. And, of course, when something starts trending this hard and fast, a lot of people are going to start registering related domains in hopes of capitalizing on the high levels of excitement and interest.
In fact, since the game launched in early July, and as of this writing, 1,200 .net domains and 9,487 .com domains with the work “pokemon” in it somewhere have been registered (according to Verisign information). One of these domains (pokemongo(.)net), in fact, reportedly sold for more than $20,000.
But wait, you say. Isn’t something like “pokemon” trademarked? Isn’t that something that Nintendo (well, technically the IP owner is The Pokémon Company, but Nintendo has a 30% share of that company) would want to protect? Well, frankly, yes, it is. So there are some interesting questions that need to be asked around this kind of domain purchasing.
Why Take a 20K Risk?
First, let’s be upfront about this. We are not trademark lawyers and much of the following information will be speculation and deduction.
What we can say for sure is that “pokemon” and “pokemon go” are very definitely registered trademarks that belong to a very large, international company. We can also say that this company is obligated to aggressively protect their trademarks, or risk brand dilution and allow precedents to dictate how others could start to, well, if not infringe on the trademark then certainly to encroach upon it.
Nintendo has certainly filed many complaints under the Uniform Domain Name Dispute Resolution Policy (UDRP), but not as much as they could have (compared to other companies in the same industry). And, it should be noted, in all the cases they filed, panels ordered the transfer of the domain names to Nintendo.
One would think that might make a $20k purchase more than a little risky.
So far, though, Nintendo has not filed any complaints against any of these domains (that we’re aware of). Why not? If they have to aggressively protect their marks, why aren’t they getting on this yet?
There’s a Difference Between Owning and Doing
The simple fact is that Nintendo and The Pokemon Company probably aren’t interested who owns what. It’s what the owners do with them that matters.
For example, in the short time the game has been available, there has been a few third-party sites that were created to add to or enhance the game in some way. One such site, pokevision.com, grew to extreme popularity and a large number of the player base was using it. Niantic, the creator of the app, moved to quickly shut it down.
You may note that the word “pokemon” did not actually appear in that domain name, so it’s unlikely there will be any sort of UDRP filing related to it. (It’s unclear whether they have a trademark on “poke” alone.)
So Nintendo has no reason to worry about someone spending $20,000 on a name that clearly infringes on their trademark. They will also feel completely comfortable filing another UDRP if a web property is ever built on it and they’ll be happy to receive the domain name it when the ruling goes in their favor.
You Don’t Have to Own Everything
We’ve talked previously about how some companies and politicians buy thousands of domains to protect their brand. Is this something Nintendo should have done? If it’s so easy to register over 10,000 domains that are highly relevant to the current trend, does that mean they were lax in their defense of their trademarks?
While you could argue that the .net version of the name of your game should have been an automatic purchase, at the same time you can argue that the company may not want to smash the merest hints of trademark encroachment just because they can.
Fan sites can help build the brand and encourage the community in a positive way, and that can be beneficial to both parties (though even then it will likely be in the owners’ best interests to clear such a thing with the company beforehand).
Having said that, though, it’s better to err on the side of caution and realize that anything that is built on someone else’s lucrative trademark will not stand the test of time.
So Why Are They Doing It and What Can Fans Do Instead?
The majority of these domains probably really were bought or registered by excited fans who just want to contribute something to the community. Though they will still very likely receive some form of communication from Nintendo, despite their intentions.
Many others, though, are likely purchased on speculation. They’re taking the risk that they’ll be able to resell them at a greater price.
Recent history has definitely shown that this is a very large risk.
So what can fans do instead?
As we saw with Pokevision, it wasn’t the name but the way it interacted with the game that was the problem. If you’re a fan, acting in good faith and not trying to infringe on the trademark, you might consider names that are close but still very distinct.