When Pokémon Go debuted last summer, the mobile game spread across the world–as of April 2017, more than 65 million people were playing, according to Business Insider. The game got people to exercise outside as they pursued Pokémon, but there were also some safety issues because of its augmented reality style.

Milwaukee County enacted an ordinance in February to curb the presence of Pokémon Go-style games in the city. According to the ordinance, game developers would be required to apply for a permit for augmented reality games, like Pokémon Go, to be played in parks.

But last week, U.S. District Judge J.P. Stadtmueller halted the ordinance because he said it may violate the First Amendment. Stadtmueller issued a preliminary injunction that the county cannot enforce the measure until a lawsuit between the county and Candy Lab Inc., which develops augmented reality games, is finished.

Candy Lab Inc. filed the lawsuit in response to the county’s ordinance, according to a local Fox affiliate. Under the county’s order, companies must also obtain a “certificate of insurance” worth $1 million of “general liability coverage,” according to The Hollywood Reporter.

Milwaukee County board supervisor Sheldon Wasserman filed the ordinance because the county was struggling to police activity in parks that doubled as “Pokémon centers” or “Pokémon gyms” for the game. The main issues included “traffic congestion, parking issues, littering, damaged turf, risks to natural habitats, lack of restrooms, and noncompliance with park system operational hours,” according to a report by Milwaukee County Parks. 

Milwaukee County is by far the largest in Wisconsin, home to over 16 percent of the state’s population. Other areas of the country have also experienced safety issues stemming from the game, which can distract people as they walk at night. Last year, three University of Maryland students were robbed at gun point on campus in a one-hour span while playing the game, according to the Baltimore Sun.

The federal judge wasn’t swayed by the public safety issues, however. Instead, Stadtmueller recommends that the county allocate resources to remedying the issue instead of putting the pressure on the companies:

Rather than prohibit publication of the game itself, the County could address its concerns by directly regulating the objectionable downstream conduct. … This might include aggressively penalizing gamers who violate park rules or limiting gamers to certain areas of the park. Such measures would assuage the alleged evils visited upon the parks by gamers while stifling less expression than the Ordinance does.

One issue Stadtmueller brought up in his decision was how broad the restrictions were. For a law such as this to be constitutional, he said, it must be narrowly-tailored to the specific issue and content neutral. The judge didn’t feel that was the case. Stadtmueller believes the current restrictions are too “vague” and provide too much censorship power to government officials, according to The Hollywood Reporter.

The county claims that the games can’t be considered speech, according to a local Fox affiliate. But Stadtmueller said the plot, characters, and dialogue make the game an expression of free speech.

Despite the decision, Wasserman is still committed to fighting for the ordinance. He said he is particularly intrigued by the groundbreaking nature of the case and the potential ramifications.

“I’ve also been told by the lawyers that this case is getting so hot, and that it brings up so many constitutional questions, that this has the potential to go all the way up to the U.S. Supreme Court,” Wasserman said.

Only 10 years ago it would have seemed impossible that people would walk around with their phones catching virtual Pokémon and visiting parks or buildings to battle other gamers. But now that is a reality local governments are facing.

Whichever direction the court proceeds, it will have a ripple effect across the gaming and mobile application industry. Because of the initial injunction, though, Pokémon Go fans can rejoice and continue to enjoy the application wherever, and whenever, they want.

Josh Schmidt

Josh Schmidt is an editorial intern and is a native of the Washington D.C Metropolitan area. He is working towards a degree in multi-platform journalism with a minor in history at nearby University of Maryland. Contact Josh at staff@LawStreetMedia.com.

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This is a fun one.  Mattel, parent company of the makers of the popular board game Scrabble, has attempted to assert their U.K. trademark rights to the letter tiles used in the game. The California company sued Zynga, Inc., creators of “Scramble with Friends,” for allegedly infringing on their tile trademark. I’m sorry…what?

Mattel acquired trademark rights to the tile trademark in 2000. However, last November, Zynga obtained a summary judgment against Mattel on the grounds that the mark was not entitled to registration. Rightfully so. If Mattel were able to preclude the creation of any tile with a letter on it, wouldn’t that only increase the number of corporations attempting to monopolize trademarks? Earlier this month the decision was upheld because the trademark covering a tile, accompanied by its alphabetic and numeric markings, had the potential to be extremely large in breadth.

*gasp* You don’t say?

Needless to say, I’m pleased with the outcome of this case. Trademarks are to be used to protect the goodwill of your business. They are a vehicle for promotion and maintaining distinctiveness in the marketplace so as not to confuse consumers. However, here, Mattel was utilizing their mark to gain unfair competitive advantage. The mark the company wanted to enforce could allow them to keep competitors from creating variations of square blocks with numbers, letters, and combinations thereof.

Here’s the thing: I’m all for protecting the likeness of your brand.  I can see how viewers of Zynga’s game may associate it with Scrabble. We have a word game: check. Tiles with letters on them: check. But that’s really as far as the comparison train takes us.

There are stark differences to be noted. First, Zynga’s placement of a number on the tile is in the top right versus the bottom right number placement by Mattel. Soooo…if I wanted to create a word game and indicate the value of each letter, even if I placed the number in the center, I would be subject to a trademark infringement suit? Second, even though the two games have the same objective of creating words with the letters you are given, the rules aren’t the same. One is timed and the other isn’t. One only allows you to connect letters that are adjacent to each other and the other doesn’t. Not to infer that there needs to be a long list of similarities for a judgment of infringement, but I’d say there is enough difference between the two that Mattel can’t unequivocally claim harm.

In my humble and personal opinion, this is just a matter of gluttony.

Gena.

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Featured image courtesy of [torbakhopper via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

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