Redbubble defeated in Pokémon battle
Published on January 18, 2018 by Selwyn Black
Pokémon Company International, Inc. v Redbubble Ltd  FCA 1541 is a recent decision of the Federal Court which shows how consumer and copyright laws can interact with the developing digital economy.
- The Pokémon Company International, Inc. (Pokémon Company) oversees the licensing of Pokémon products in Australia.
- Redbubble Ltd (Redbubble) operates an online marketplace that enables artists to upload images or words to the Redbubble website. That work is then applied onto products such as clothing and mugs, which customers can purchase.
- Images of Pokémon characters were uploaded to the Redbubble website by various artists.
- Google searches of the word “shirt” and the name of certain Pokémon characters would result in sponsored and non-sponsored Redbubble results for shirts bearing the uploaded image of the Pokémon characters.
- Redbubble paid Google for the sponsored links to its website, and provides Google with the information contained in those links. This information would normally include the title of an artwork, a description of the product, the price, and the image of the artwork.
- Nothing on the Redbubble website suggested that it was unauthorised to sell products bearing the image of the Pokémon Company’s characters.
- The Pokémon brand has a substantial reputation in Australia.
- The Pokémon Company alleged that Redbubble:
(a) engaged in misleading and deceptive conduct by representing through the Redbubble website and through sponsored Google searches, that products available through those websites bearing Pokémon intellectual property were licensed or authorised by the Pokémon Company; and
(b) infringed the Pokémon Company’s copyright by:
(i) making certain artistic works available on the Redbubble website;
(ii) exhibiting by way of trade products bearing those artistic works; and
(iii) authorising the reproduction of those artistic works onto products.
- The Court found in favour of The Pokémon Company.
- In relation to the misleading and deceptive conduct claims, interesting points made by the Court included that:
(a) the Redbubble website and sponsored Google ads represented that the products available through those websites were licensed or authorised by the Pokémon Company;
(b) an ordinary or reasonable consumer would likely be misled or deceived into believing that the artworks on the products were licensed or authorised, with relevant factors including:
(i) the price for a Pokémon shirt on the Redbubble website was within the same range a customer could expect to pay from an authorised merchandiser;
(ii) nothing in the sponsored Google link or the Redbubble website informed or suggested that Redbubble was not an authorised retailer of Pokémon products.
- In relation to the copyright infringement claims, interesting points made by the Court included that:
(a) the owner of copyright in an artistic work has the exclusive right to communicate that work to the public, which Redbubble infringed by displaying that work on its website;
(b) Redbubble was not the originator of any of the images on its website, with the originator being the artists who uploaded the images. However, Redbubble was responsible for determining that content through its processes, protocols and arrangements with the artists;
(c) Redbubble took many reasonable steps to prevent copyright infringement, including having an intellectual property policy in place. However, Redbubble chose to conduct its business in a manner such that there would likely be infringements and in doing so enabled the infringements to occur.
Many of the most valuable businesses in the world today provide a digital platform for its users to create content and value. This case emphasises that the owner of the platform can at times be responsible for the actions and breaches of intellectual property rights by the users of the platform.