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July 2016

Get Your Pokémon Off My Lawn!

Pokémon Go has quickly become a global phenomenon, but no one seems to be asking, "is placing virtual creatures on the property of others legal?"

Pokémon Go is an app for mobile devices that places virtual Pokémon, PokeStops and Gyms on a computer generated map. Pokémon are virtual creatures that players try to catch by throwing virtual balls at them by using the touchscreen of their phone. Pokestops are basically signposts that appear on the map where players collect the balls to throw at Pokémons and other items that enhance game play. Gyms are where players battle each other with their Pokémons. This type of game is a new genre called augmented reality.

Sounds like fun. But let’s imagine Sid, is the owner of a shopping center and within days of the game’s release, packs of children and young adults swarmed it, taking up residence on the sidewalk, while waiting for Pokémon to appear on their phones. Due to the large number of teenagers hanging out on the sidewalk, customers were having a hard time getting into stores, forcing Sid to hire an extra security guard to ask the players not to block entrances. Imagine further this went on for months and as the bills began to mount for the extra security patrols, Sid wanted the Pokémon off his property. What can he do?

In California, Sid may have at least two options: sue the game maker for 1) nuisance, and 2) trespass.

A nuisance is a condition created by another that interferes with a property owners use or enjoyment of their property to which they did not consent.1  "Liability for nuisance does not require proof of damage to the plaintiff’s property; proof of interference with the plaintiff’s use and enjoyment of that property is sufficient.” 2

Here, the gamers hanging out on the sidewalk are a nuisance, as they are interfering with Sid’s ability to use his property to effectively sell products to paying customers.

Whereas under these facts, the trespass would be the act of the game maker causing the game players to enter Sid’s property to capture Pokémon without his permission, resulting in harm to Sid.3 Further, “[a]n intent to damage is not necessary”.4 Here, Sid has been harmed by having to pay for extra security patrols.

Thus, it seems likely Sid wins both his nuisance and trespass claims. Or does he? What if the company making the game has no contacts in California? Does a court in California have personal jurisdiction over the game maker for placing virtual creatures around Sid’s shopping center? That has yet to be decided, in the meantime, welcome to the brave new world of augmented reality.

1 Judicial Council of California Civil Jury Instructions (2016), No. 2021.

2 San Diego Gas & Elec. Co. v. Superior Court (1996) 13 Cal.4th 893, 937.

3 Judicial Council of California Civil Jury Instructions (2016), No. 2000.

4 Meyer v. Pacific Employers Insurance Co. (1965) 233 Cal.App. 2d 321, 326.

Commercial Litigation

Commercial Litigation