In Pokémon Company International, Inc. v Redbubble Ltd [2017] FCA 1541 the Applicant, who is responsible for the licensing of Pokémon related products, alleged that the Respondent had breached the Australian Consumer Law by making misleading and deceptive representations and also infringed its copyright in various Pokémon characters.
Redbubble provides an online platform for artists to upload images which consumers can then have printed onto goods like t-shirts by third party suppliers. Among the images uploaded to the Redbubble website were several which included well known Pokémon characters like Pikachu. Potential customers searching online for a “Pikachu shirt” would be presented with a mix of organic and sponsored search results relating to products available to purchase via the Redbubble website.
The Court held that the Redbubble website and the internet advertisements sponsored by Redbubble on Google breached the ACL as they contained representations that the products available through those websites were supplied, licensed, associated, sponsored, approved or authorised by Pokémon. In reaching this conclusion, the Court noted that:
- An important part of the commercial activities of Pokémon was to licence the sale of merchandise connected with the Pokémon brand.
- A potential customer taken to the Redbubble website as a result of clicking the sponsored link would not be told anything to suggest that Redbubble was not an authorised online retailer of Pokémon products.
- The price for the items available from Redbubble was within the same range as a customer could expect to pay for the product from an authorised merchandiser.
It was accepted that some consumers would be aware “that the internet [was] awash with Pokémon characters” on other sites” and would therefore not be misled or deceived. Nevertheless,
the ordinary or reasonable retail consumer for Pikachu related products would have the repeated representation in a significant number of search results that what was offered through Redbubble was supplied, licensed, associated, sponsored, approved or authorised by [Pokémon] when that was not the case.
Although the commercial licencing activities engaged in by Pokémon where clearly a factor in this outcome, the decision potentially bolsters the capacity of brand owners in general to prevent unauthorised use of imagery associated with them.
While Redbubble was also found to have infringed Pokémon’s copyright, the Court declined to make injunctions on the basis that there was no threat of further infringement. Further, Pokémon was only awarded $1 nominal damages and its claim for additional damages was refused.