Patent whiffs, name tiffs and deepfake tricks: a fragrant IP mix

And from one Japanese entertainment company to another, Nintendo was also in the air this month for a veritable cloud of patent filings concerning video game experiences. The application strategy in the United States may be over-optimistic given the country's high and somewhat obscure patentability threshold for software.

The Supreme Court decision in Alice Corp. vs. CLS Bank International (2014) held that "merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention." To this day, the ruling remains notorious not for any controversy of judgment but for its failure to bring clarity to the mounting issue of software patent eligibility in the United States.

That being the case, Nintendo's applications cite Japanese filings as their priorities. Crucially, Japan's IP legislation statutorily recognizes software patents in contrast to the European system, where computer programs are not regarded as inventions on their face, and U.S. case law, which disfavors "abstract ideas."

Perhaps application US2023233938A1 from Nintendo sums up this complex experience best: "[...] an NPC [non-playable character] displayed on the diary screen emits an induction comment. Responding to this, a player sticks a sticker. Moreover, the NPC emits a reaction comment responding to the pasted sticker. That is, the player performs an exchange with the NPC according to an inducement.

Nintendo and Sony may get their stickers and stinkers yet – or foul emissions could result.

A tale of two Kylies

When you hear the name Kylie, the next word that comes to mind might reveal something about your generation. Unfortunately for those at the United States Patent and Trademark Office (USPTO), trademark examiners cannot rely on off-the-cuff associations to reach their decisions.

Kylie Minogue and Kylie Jenner are set to tussle for pop-culture supremacy, or more accurately, priority. Last month, Jenner filed three "Kylie" wordmark applications at the USPTO, relating to downloadable software, printed media and jewelry.

But this is not the first time the eponymous trademark registrants have clashed over the likelihood of confusion. On April 1, 2015, Jenner filed a similar wordmark to signify advertising services. This prompted Minogue to oppose the application on grounds of priority, confusion and dilution by blurring and tarnishment. The proceedings were terminated in 2017 following an out-of-court settlement, and the two went on to establish separate makeup brands: "Kylie Cosmetics" for Jenner that same year and "Kylie" for Minogue in 2019.

Since then, Minogue has emphasized that the opposition was purely business and that there was no animosity between the famous Kylies. "I've spent a lifetime, you know, protecting my brand and building my brand, so it was just something that had to be done," Minogue shared on "Watch What Happens Live" in 2022. "But let me also say," she hastened to add after pointing out the obligation to defend her IP, "we came to an agreement."

Though the details of that arrangement have never been disclosed, they are unlikely to concern these latest trademark filings. Perhaps Minogue just cannot get Jenner out of her head after all.

Changing the tempo: If you can't beat them...

In April of this year, we examined the contention surrounding AI-generated sound-a-likes. When "Heart On My Sleeve" appeared on streaming services using audio "deepfakes" of musicians Drake and The Weeknd, Universal Music Group (UMG) was among the most vocal critics.

The offending song was swiftly removed from most platforms under the legal weight of the world's largest music production corporation. But such was UMG's indignation that Jeffrey Harleston, General Counsel and Executive Vice President of Business and Legal Affairs, testified before the U.S. Senate on the matter. Speaking at the Senate Judiciary Committee's subcommittee on Intellectual Property on July 12, Harleston opined that: "An artist's voice is often the most valuable part of their livelihood and public persona, and to steal it, no matter the means, is wrong."

However, the gears of legislation usually turn very slowly. This might explain why, according to unnamed sources, UMG is trying to anticipate AI's disruption of the music industry through active measures as well as advocacy.

The Financial Times reported on August 8 that four people "familiar with the matter" had confirmed that UMG is seeking its own remedy to the IP threat. These sources claimed that the company was in talks with Google to develop a tool that would allow members of the public to create songs legitimately using AI voice clones. In essence, users would pay to license the IP rights from the publisher, in turn compensating those singers who signed up for the scheme. It is important to note that the licenses would need to involve more than copyrights since these rights do not subsist intrinsically in a person's voice. A vital element would be a recognition of personality rights, sometimes called rights of publicity, as this IP concerns an individual's unique identifying characteristics.

In that light, it is ironic that the informers remain anonymous, one of whom asserted that Warner Music was also negotiating with Google to deliver a similar product. As of yet, none of the three companies has offered an official statement on the leaked information.

Will licensing perfectly attuned voices let the genius or the genie out of the bottle? We shall soon see (and hear).