Is it legal to use a Similar item of another Person's work in your own Work?

Question

I'm going to use Ketchapp's Basketball App as an Example. In the Game, you can have Unlockable Skins for your Basketball, and some of those Skins are recognizable icons or things from other games like they have a Pokeball Skin, its not perfectly like a Pokeball but you can clearly identify it as a Pokeball.

So my Question is, is it legal to have something like that said Pokeball Skin in a App (or any of your work)?

Answer 1

The owner of the IP has the exclusive right to its use. Another person can use it with permission or if it meets fair dealing/use criteria for copyright (using it in an app probably doesn't). If the use is illegal then the owner can choose to enforce their rights or not. Trade marks that are not defended will lapse, copyright continues even if not defended (a Pokeball skin will be both).

Answer 2

It doesn't appear that Ketchap is violating a trademark, in that putting a skin on your basketball is not doing the same thing as an actual Pokeball. What they may be doing is passing off, which requires three elements:

• A 'get-up' similar to the registered one (if "you can clearly identify it as a Pokeball", then yes)
• Misrepresentation, specifically that this skin is connected to actual Pokeballs (Usually decided in court, on evidence of witnesses who were/were not confused)
• Damage to trademark (This is enormously subjective, and something that must be considered before suing. If this app is a good advertisement for the original game, there's no damage. If it makes the original look cheap and nasty, or if it could divert customers from the original, there is.)

Intellectual Property law is complex. Do not use this answer as a basis for your assignment, and definitely do not treat it as a legal opinion on the legality of your cool new app.