Morrison Entertainment Group Inc. v. Nintendo of America, Inc.

Nintendo of America, Inc. (Nintendo) (defendant) produced games for its franchise Pokémon, a shortened version of Pocket Monster, the name that was used in Japan for marketing. The Pokémon mark on the games appeared in yellow typeface with a blue border and cartoon-like font. Morrison Entertainment Group Inc. (Morrison) (plaintiff) produced the Monster in My Pocket games, a similar product concept to the Pokémon games. The Monster in My Pocket mark was displayed in a green gothic-style font with the words “in My Pocket” on a second line and within a box. Morrison sued Nintendo, arguing that Nintendo’s Pokémon mark was likely to cause reverse confusion with the Monster in My Pocket mark. Morrison contended that a consumer who saw Monster in My Pocket could think that the game was made by the same company that created the Pokémon games. Nintendo filed a counterclaim to seek cancellation of Morrison’s trademark. Morrison presented testimony that its marketing representative was asked if Monster in My Pocket was a Pokémon rip-off because of similarities in the games. Nintendo produced a survey stating that children in both games’ target age group were unlikely to confuse the two trademarks. The district court granted summary judgment to Nintendo on Morrison’s reverse-confusion claim. The court also found that because Nintendo’s counterclaim was based on grounds that Morrison’s litigation would damage the Pokémon mark, Nintendo no longer had standing to bring the counterclaim after Morrison’s claim failed. Both parties appealed to the Ninth Circuit.