Human-robot interactions, once confined to science fiction, are becoming part of daily life. In addition to manufacturing and automated teller machines, robot interfaces are replacing purely human interactions in variety of service-sector interactions. Soon, clerical work, transportation, and drive-through eateries will be automated. Some robots are becoming more human-like in appearance, interactions, and cognitive function.
In the realm of intellectual property law, however, robots are not merely functional items confined to the practice area of patent protection. Consumers will certainly associate the appearance or other attributes of these robots with their respective sources, giving rise to the question, “What protection is available when the appearance of the robot becomes an emblem of my business?”
The Henn-na Hotel in Japan is illustrative of this trend. It bills itself as “the world’s first hotel staffed by robots.” The hotel uses robots for reception, as porters, and for room service.
The Henn-Na Hotel describes its robots as “mechanical yet somehow human,” and it claims that they “will warm your heart.”
As another example, Japan has indicated that robots will be a central part of hosting the 2020 Summer Olympic Games in Tokyo, including directing spectators to their seats.
Trademark protection extends to logos, sounds, images, and words that operate to identify the source of a good or service.
Functional aspects — e.g., aspects related to the essential use, cost, or quality — are not protectable as a trademark, but they might be protectable under patent or copyright protection.
Nevertheless, it is conceivable that a robot would have numerous non-functional aspects. Such aspects could include name, likeness, costume, voice, and even a catchphase.
Protecting robot interfaces
A search of the U.S. Patent and Trademark Office‘s database reveals several trademark registrations for two-dimensional images of robots in connection with a panoply of goods and services. These trademarks include application serial numbers 87/108344, 86/480260, 86/705242, and 87/021552.
Some more famous examples include Lucasfilm’s “R2-D2” and “C-3PO” trademarks (Nos. 3,739,729 and 3,823,874, respectively). The descriptions of these marks identify the look of the robot using color, shape, and structure.
Other appearance features likely to earn trademark protection features are distinctive or colored lighting, color schemes, and symbols, similar to Sony’s registration to the PlayStation controller symbols under U.S. Trademark Registration 2,993,560.
Trademark protection is not limited to a robot’s appearance, though. Trademark protection can cover a robot interface and sounds, such as Sony’s robotic voice announcing “PlayStation,” AOL’s famous computerized voice announcing “You’ve Got Mail” (Registration 2,821,863), and Darth Vader’s robotic breathing (Registration 3,618,322, the “sound of rhythmic mechanical human breathing created by breathing through a SCUBA tank regulator”).
Yes, even the Dark Side is entitled to trademark protection.
The entire look of a robot does not need to be protected, since certain parts can be protected instead. For instance, all of a company’s robots must have a certain feature. Thus, when designing a robot that may become the interface of your business, it is worth considering incorporating one or more unique elements that may serve as a trademark.
In the U.S., trademark rights are established by either filing or using the mark first. Rights created by use are limited to the geographic area of use, however, while rights created by filing potentially extend nationwide. A prompt filing is therefore recommended to establish the broadest possible rights.
In the past, there have been issues when robots were made to simulate celebrities. In one case, George Wendt and John Ratzenberger (Norm and Cliff of Cheers fame) successfully challenged the use of robots based upon their likenesses in airport bars modeled after the television show set.
A few years earlier, Vanna While successfully sued Samsung for using a robot dressed in a wig, gown, and jewelry meant to depict a futuristic vision of Wheel of Fortune in a commercial for VCRs. And a man recently built a robot that closely resembles actress Scarlett Johansson.
Google last year applied for a patent around robots that could change personalities based on the situation. Is this a play toward enabling your AI assistant to follow you from your house to your car and office throughout the day?
And, of course, Disney is working on revamping the licensed animatronics in its theme parks. It just filed a patent to allow audio animatronics to follow people’s eyes to know where they’re looking.
How long will it be before the shoe is on the robotic foot, and the owner of a robot is suing someone for simulating the appearance of its robot?
As robots continue to be integrated into our lives, the creators of these robots can and should protect the construction and function of their robots with utility patents and the appearance of their robots with design patents.
The employers of robots should also consider trademark and/or service mark protection for the distinctive aspects of these robots. The attributes of a robot delivering services to customers are likely to be at least as memorable for those customers as the brands, logos, color scheme, configuration, and other aspects of the trade dress that we readily accept as protectable marks.
Protecting robots as trademarks will be essential to protect their investment in their business and protecting their customers from confusion. Customers’ affinity for particular robot service providers will drive business, and have employers saying, “Domo arigato, Mr. Roboto.”
About the authors:
Bryan K. Wheelock is a principal, and Joel R. Samuels is an associate at Harness Dickey & Pierce PLC in St. Louis. Wheelock prepares and prosecutes U.S. and foreign patent applications for medical devices, mechanical and electromechanical devices, manufacturing machinery and processes, metal alloys, and other materials. He also conducts patentability searches, trademark availability searches, and patent and trademark infringement studies.
Samuels negotiates and documents a wide variety of agreements, including settlements, licenses, and inventor development arrangements. He also advises on IP-related transactions and claims involving complex antitrust issues, as well as promoting clients’ positions in trademark oppositions and cancellations.