Video Games, Robots and Arches

As we move into 2022 we thought we’d take a look at three recent legal decisions in the tech/intellectual property space that might be of interest to content providers, platforms, inventors and brand managers. Brian Levine reports.

Nintendo Pirates Shut Down at ISP level

In December 2021 the IP Enterprise Court granted Nintendo an injunction forcing six ISPs to block access to two websites who were linking to third party sites where pirate Nintendo Switch video games could be downloaded. The Court’s grounds for granting the injunction against the ISPs were infringement of copyright and of Nintendo's registered trademarks under section 97A of the Copyright, Designs and Patents Act 1988 and section 37(1) of the Senior Courts Act 1981.

Going after the ISPs was a smart move: faster and more efficient than trying to go after each pirate individually. Removing multiple infringers’ platforms by blocking them at the ISP level is a useful tool which could potentially apply to any instance of copyright and trademark infringement.

Can a robot be an “inventor” under the law?

A slightly bizarre case is the final twist in what sounds like a science-fiction saga, picked up by the BBC earlier in 2021. The case concerned two European patent applications where the designated inventor was a robot: an artificial intelligence system called DABUS. The Legal Appeal Board of the European Patent Office decided in December 2021, sensibly, that robots couldn’t be rights holders under the European Patent Convention and that the inventor had to be a person with legal capacity. This decision follows that of the UK Court of Appeal in connection with UK patent applications that were also purportedly from AI system DABUS.

These decisions prompted press comparisons with Blade Runner’s replicants and Skynet, the fictional neural AI system put in place by Cyberdyne Systems that led to a dystopian future ruled by The Terminator.

Trademarks need to be distinctive, not descriptive

Sometimes the best brands can be the simplest and the catchiest, but to be trademarks, they must be distinctive and not just descriptive. December 2021 saw shoe company Skechers USA refused at the first hurdle in their EU trademark application for the words “ARCH FIT”. These words, applied to shoes, apparently lacked distinctive character and were simply descriptive (under Article 7(1)(b) and (c) of Regulation (EU) 2017/1001): shoes are meant to fit, including at the arch of the foot.

This is a common issue for brand managers, but there are imaginative ways of overcoming the distinctiveness hurdle, and perhaps Skechers will try again with a slightly different approach

For more information contact Head of Media, Entertainment and Intellectual Property at Battens Solicitors, Brian Levine brian.levine@battens.co.uk 01935 846258