A search for the operator of mysterious websites using unlicensed Pokémon branding to spruik an upcoming game has proved trickier than catching the Nintendo characters themselves, with clues leading private investigators all the way from Sydney to a computer in Ukraine.
An "abundance of evidence" before the Federal Court suggests the creators have been "evading identification" including through identity theft, a judge said this week.
The Pokémon Company International, which manages the licensing of the popular brand, launched an intellectual property case after its marketing team was contacted by several news outlets last August.
A person purporting to be from the legal department of Kotiota studios in Australia had emailed the outlets requesting Kotiota's name be added to stories as a developer of Pokémon projects.
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One email cited in court documents, to pop culture site BleedingCool and said to be from a Kotiota lawyer called "Osheya", suggested the company would claims its "rights" over intellectual property mentioned in an article.
"The reason for such a request is very simple, we have worked as a contractor in similar projects for many years and did not pay due attention to information about our studio on the Internet," the letter said.
"We are now serious about changing this."
It came as a surprise to The Pokémon Company's business development teams, who could find no record of any agreement.
The hunt was on.
Kotiota's website featured Pokémon characters Charmander, Squirtle, Snorlax, Bulbasaur, Eevee and Pikachu to make various claims, including about the 2023 release of a game called PokeWorld, which had its own website.
Perhaps most concerning to the official Pokémon managers, that project foreshadowed the release of non-fungible tokens (NFTs) — unique cryptographic tokens, akin to a collectible in digital form.
In an affidavit, The Pokémon Company's attorney Katherine Fang told the court of a deliberate decision from Nintendo against launching Pokémon NFTs.
She described the conduct of Kotiota as being "of a concerted scale" and "clearly deliberate".
But the search for the orchestrators became more bizarre as the case unfolded.
When specialist cybercrime investigation firm IFW Global was engaged, the hunt became professional.
Serving court documents on their opponents was problematic.
A private investigator visited a Parramatta address linked to Kotiota's website, which turned out to be a co-working space with no record of the company being there.
Kotiota's website was registered in the name of another company, without consent, the court heard.
That company's director swore an affidavit denying involvement and blamed identity fraud.
A forensic IT consultant analysed devices and cloud services, concluding there was nothing to demonstrate involvement.
Meanwhile, the Kotiota website was cancelled in February 2023, but reactivated the following month with the same Pokémon content.
This time, it popped up using the name of yet another Pokémon-related company, whose director also said their information was used illegally and co-operated with attempts to have it scrapped.
According to one of the detailed affidavits of The Pokémon Company's Australian lawyer David Fixler, the investigation established that payment for the Kotiota domain was processed under a reseller account, but the IP address was a VPN (virtual private network), representing a dead end.
Lawyers continued to tackle the problem of serving court documents electronically.
IFW sent a series of tracked emails to different addresses to monitor whether they were actively used — and potentially extract the recipient's IP address.
One, associated with the re-registration of the Kotiota site under the name David Bush, pinged at a real IP address in Mykolaivska, Ukraine.
The email, IFW established, was forwarded and opened twice on IP addresses that were both protected by Google proxy.
Much like Pokémon characters themselves, the Kotiota website was morphing into different forms.
It had gone from promoting the unlicensed Pokémon game to trumpeting a Russian tour company.
In May this year, it advertised "a team of individual programmers that have been making WordPress plug-ins for years".
Three days later, it morphed again; this time, into a collection of Australian tattoo artists.
In June, work was underway to find the so-called "David Bush", who'd been listed as a registrant of Kotiota.com.au.
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The address provided was in Mackenzie, Queensland, and the private eyes found phone number of the three people going by the name in that state.
A woman who answered the first number said that David was "not computer literate" and was "too old to understand anything electronic".
The second number was incorrect, while the third was disconnected.
This week, The Pokémon Company International pushed ahead with its application for a default judgement against the elusive Kotiota.
Barrister Clare Cunliffe said it was clear that there had been several people whose identities had been "appropriated".
The prospect of Kotiota filing any appearance in the case seemed "vanishingly small", she told Justice David Yates.
The company sought a permanent injunction restraining Kotiota from using the Pokémon brand, along with declarations of false and misleading representations under Australian Consumer Law.
Justice Yates indicated it was an appropriate case for default judgement.
On Friday, he said the allegations asserted were taken to have been admitted, granting The Pokémon Company's application subject to there being no reply from Kotiota within 21 days.
"In these circumstances, it seems most unlikely that, even if it had been served, the third respondent (Kotiota) would have responded to the application for default judgement," the judge said.
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