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July 29, 2016

Legal Update
Grace L. McGuire

Liability for businesses acting as hosts for “Pokemon Go”?

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The smartphone game, “Pokémon GO,” is all the rage right now with adults and kids alike. Retailers and hospitality-based businesses have gotten into the craze, declaring themselves to be “Pokéstops” and inviting players to their premises to catch rare Pokémon. Before you jump into this weird world, here are some things to think about to protect your business from legal liability.

What is a Pokémon, anyway?

“Pokémon GO” is a spinoff of a collectible card game popular with kids in the 1990s. In the new smartphone game, players attempt to capture digital creatures called Pokémon. Once you’ve captured a Pokémon, you can use it to battle with other players. If you win, you earn points for your team. Pokémon GO uses the smartphone’s GPS technology to integrate the game into the real world, creating an “augmented reality.” Players can only capture Pokémon in the game if they are near certain GPS coordinates. These locations, where Pokémon are found, are called Pokéstops. Pokéstops are pre-programmed into the game at particular locations. Players can also request that the game create new Pokéstops, or alter the location of existing ones. To encourage Pokémon to visit the Pokéstops, players can purchase in-game items and associate those items with specific Pokéstops. These in-game items are, appropriately, called “lures,” because they “lure” Pokémon (and players!) to the Pokéstop location chosen by the player controlling the lure.

Luring Players to Your Premises

Unsurprisingly, upon seeing the hordes of people who congregate around Pokéstops in their neighborhoods, retailers and restaurants have joined the game in order to “lure” potential customers to their locations. By making their business a Pokéstop, or by placing lures on Pokéstops close to their businesses, they hope that the game will bring people into their physical stores who wouldn’t have otherwise stopped in.

A movie theatre near Boston, MA, announces that it is a Pokéstop.

A movie theatre near Boston, MA, announces that it is a Pokéstop.

If you are involved in a business that’s interested in cashing in on this craze, think about whether your location is prepared to safely manage a large influx of people converging on your location at once. Some considerations are legal ones, while others are merely practical. Will your existing customers thank you for encouraging large groups of players, many of them teenagers, to hang around your storefront? What about your neighbors? A large crowd, especially of younger players, can easily spill over on to a neighboring businesses property, leaving you open for claims for nuisance of trespassing. Security should also be a major concern. Do you have the capacity to manage a large crowd? Do you have the appropriate security to control access to your premises, if your premises are on the smaller side, as many bars and restaurants are?

Security is an especially important consideration for businesses that are open later in the evenings, and for locations that serve alcohol. It has also been reported that some unscrupulous individuals are targeting Pokémon GO players for robbery and other criminal acts, counting on the players to be engrossed in the game and not aware of their surroundings.

Finally, be sure to consider how to keep your new customers safe from their own inattention. Pokémon GO players will be engrossed in their smartphones, and paying less attention to their surroundings than they would be under normal circumstances. If you invite them on to your premises for this purpose, you will be expected to plan accordingly for their safety. Do you have safety measures in place in anticipation of large crowds outside your premises, such as extra lighting or blocking off unsafe areas near your building in your parking lot? Do you need to take extra care to ensure areas are safe, where customers don’t usually go, but who players might wander in search of Pokémon?

These are only a few questions you should ask yourself before you invite the world to play Pokémon GO at your business location. If you think ahead and plan for these issues, you could be saving yourself from legal trouble down the road.