Licence to Kiss? Harlequin Files Application to Patent Kissing

Dan Whalen is a JD candidate at Osgoode Hall Law School.

It’s no secret that Valentine’s Day has become as much, if not more of, a holiday for marketing and merchandising profiteers as for lovers. With the big day approaching, one such company has made the rather unusual move of seeking to patent the kiss. Indeed, Harlequin Enterprises has filed an actual application with the US Patent and Trademark Office for what it describes rather coldly as “a method by which two people can reciprocate their romantic feelings towards one another in a manner that deepens attachment, provides pleasure and promotes physical and emotional well-being.” If a patent is granted to the company, which produces romance novels, it very graciously plans to allow everyone to employ the invention free of charge.

The filing possesses all the requisite elements of a patent application, but is it genuine? One shouldn’t wonder for too long. The application was accompanied by a press release and website inviting internet surfers to come and share their favourite versions of the act or take a quiz that tells takers what kind of kiss best describes them. Certainly, this would not be the first time that a company has done such a thing. Last November, Nintendo raised eyebrows when it applied for a trademark of the phrase “It’s On Like Donkey Kong,” a play on one of the company’s franchise characters. Onlookers’ curiosity was soon quenched when it was revealed that the company’s latest Donkey Kong video game was to be released shortly.

No doubt, such publicity stunts will continue to arise. There do not seem to be any real legal consequences; frivolous lawsuits will simply be thrown out, silly applications denied. Even such failure is generally successful in generating publicity. But no doubt companies should pause and reflect: in view of what’s in good and poor taste, what is good and bad publicity?

  1. Harlequin’s patent application is one of the more ridiculous things that I’ve heard lately. I seriously have any doubt that it would get any traction whatsoever at any patent office — for starters, it doesn’t meet either the “obviousness” or novelty standard, and seems to fail the machine-or-transformation test. Obviously, there’s tons of prior art. For these and other reasons, it’s obvious that this “patent application” is a publicity stunt. The problem is that the stunt is frivolously utilizing the limited resources of an already-overburdened patent office.

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