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Suppose a developer creates a simplistic web-based educational game that uses Pokémon names, but not images. It has a similar battle style to the old Gameboy games, but all the images are original. If the dev were to publish it as a 100% free and open source educational application on web, android, and iOS, is it possible for the dev to run into copyright/trademark issues of any kind? Would it fall under fair use, and if not why?

If the developer will not profit off of the application in any way, does that help avoid legal problems? Similarly, if the developer includes disclaimers about the Pokémon names would that help?

Are there other steps could such a developer take to avoid a lawsuit?

Suppose the developer simply posts the game to GitHub for potential employers to see. Could the developer get in trouble if someone pulls the code and publishes it elsewhere? If the developer is asked to take the game down, and does so, could the developer still face charges?

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  • This is really asking what the law is for a particular situation. I will edit to make it more generic. It should not in my view be closed as asking for specific legal advice – David Siegel Jan 5 at 22:54
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    There is no such thing as a "copyright disclaimer". – pjc50 Jan 6 at 16:25
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    Copyright Disclaimers are actually admittance that you had no right and should be prosecuted for any IP holder worth their salt. – Trish Jan 6 at 20:17
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    @DavidSiegel they are used like candy in the wrong way by fanfiction writers, fangame makers and such, in ways where fair use and dealing is impossible. – Trish Jan 6 at 21:57
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    Stefan If the images are similar enough that a disclaimer is wise, they might well be enough to make the game a derivative work and thus a copyright infringement. In such a case a disclaimer merely establishes that the imitation was knowing, and makes a suit measier to win. That is more or less the point that @trish was making, I think. – David Siegel Jan 6 at 21:57
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Making the game free makes very little if any difference to the position here. There are two kinds of IP issues that could possibly be involved: copyright and trademark.

Note: both copyright and trademark are civil, not criminal issues (except in very limited circumstances which do not apply to the situation described in the question). You will not "face charges" but might possibly be sued. If you are asked to take down such a game and comply, this might end the matter, but if an IP holder claimed that damages had occurred before the game was taken down a suite might possibly still be brought against the developer.

Copyright

Names, like titles and other short phrases, cannot be protected by copyright. As long as no other text from anyone else, and no images are copied or imitated, copyright is not infringed. This means that there are no copyright issues. Game mechanics and rules cannot be copyrighted, although the words of game rules can be.

Therefore, fair use which is a strictly US copyright legal concept, is not involved here. Neither is fair dealing, a somewhat similar legal concept from the UK and some commonwealth and European countries.

Trademark

Here is the main issue for this situation. The names of individual Pokémon characters are probably (almost surely) protected as trademarks. That means you cannot use them to identify your game, or any other product or service, and you cannot use them to advertise or market your game. This is true even if the "selling price" is $0.

The use here does not seem to be nominative use, as you are not intending to refer to Pokémon or any of its variants. You are just reusing the names.

As long as you make it very clear that your game is not made by, nor in any way authorized or endorsed by the makers of Pokémon, this is probably not trademark infringement. But if the makers of Pokémon become aware of your game, they might well send you a cease and desist letter, and they might file a trademark infringement suit. Even if you were to win such a suit, as I think you might well do, it might be costly to defend.

Could you alter the names to ones you invent form yourself? That might save a lot of trouble and hassle. What is the value to you in reusing the well-known Pokémon names?

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    @Stefan One option: include a text config file which the user can alter that specifies the character names. For you nephew or other friends, set them to the Pokémon names. For general release, set the defaults to something, anything else. Posting only to Github reduces the chance of legal action being taken, and probably reduces the amount of damages that could be claimed if it is. but it is still a public posting, so it does not eliminate the possibility – David Siegel Jan 5 at 23:08
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    Some IP holders, such as Disney, have a reputation for pursuing even unprofitable defendants to deter other infringers. A holder might choose not to sue an infringer with little money, but that is a gamble. Fair use is not an issue in this case. – David Siegel Jan 6 at 19:01
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    not so tiny correction: Pokemon are copyrighted. Each and every single visual design and every episode, every card art is registered... – Trish Jan 6 at 20:20
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    @Trish yes the images are protected by copyright. But the question says the images will not be used. The same is true of the te4xtual descriptions. The names on their own cannot be protected by copyright. – David Siegel Jan 6 at 20:26
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    @dsollen No, it wouldn't. Even for copyright, parody is only a defense when it is used to comment on the original, not when it just reuses the original in a distorted pattern. But here copyright is not an issue at all. For trademarks there is NO parody defense if the similarity is great enough to suggest same source or authorization to some reasonable consumers. One may not trade on the good will or rep of another product without permission. "fair use" is only for copyright issues. For trademarks there is only nominative use which does not apply here. "parody" isn't a get-out-of-IP free card – David Siegel Jan 7 at 18:27

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