The recent developments in generative AI are disrupting how we all learn, work and interact. The disruption is on a seismic scale. Generative AI is being used to replace human thought and performance to undertake complex cognitive tasks, produce content and, for some time, it has been increasingly influencing our decision-making processes.
In the not so distant future, we could be delegating decisions as to what we eat, wear and play to a bot with a brain that, in some respects, can outperform human capabilities. As with every other aspect of our lives, this technology is already having an impact on trademark law and brand protection, raising some thorny issues.
Trademark law has developed around the purchasing process of goods and services by humans and as the essential function of a trademark is to allow us (humans) to distinguish one party’s goods and services from those of another, this has led to the legal protection of trademarks in every country around the world. But what happens when artificially intelligent applications interact with intellectual property and replace human involvement in the purchasing process and how can we harness the benefits of AI technologies to better protect brands?
AI & Trademark Law
AI is disrupting the underlying principles of trademark law and the courts may well have to grapple with some interesting issues if AI becomes increasingly involved in purchasing decisions, including:
> the average consumer. trademark law is built around the human consumer both in determining the registrability of trademarks and also in cases of trademark infringement. In the UK and the EU, trademark issues are determined by a judge taking on the role of the ‘average consumer’ of a specific product or service. The average consumer has been held to be someone who is reasonably well informed, reasonably observant and circumspect with imperfect recollection, with even the most highly astute of human consumers not being imbued with perfect recall. However, when the purchaser is artificially intelligent, this definition arguably does not fit and possibly in time the courts will need to consider the qualities to be ascribed to an AI purchaser
> the likelihood of confusion. as trademarks are badges of origin, protection is given to them from competing products/services which are being offered for sale under identical or similar marks where there exists a likelihood of confusion, with confusion being assessed from the viewpoint of the average consumer of those goods and services. However, will an AI purchaser undertake the same visual, phonetic and conceptual similarity assessment as an average human consumer? Indeed, is an AI purchaser capable of being confused? Presumably, being programmed to recognize typographical errors, slight variations in color or stylization of logos, it may be more difficult to fool an artificially intelligent application compared to humans and this may well be another area courts will have to consider
> liability. as AI can influence our purchasing decisions, there could be scenarios which lead to trademark infringement, where an AI gets it wrong. In such a scenario, who should be responsible for the trademark infringement? Should it be the AI application itself or the operator, the programmer, the trainer or someone else?
Some guidance can be found in cases which relate to keyword advertising, where the party responsible for the operation of the AI system may be liable if they are put on notice of the infringing activity and take no action. Governments are also grappling with these questions. In the EU, they have been working on a unified approach to regulating AI, including preparing an AI Liability Directive which may impose prohibitions on AI systems which are seen as high risk, such as emotion recognition systems and the scraping of biometric data from the internet to create facial recognition databases. In contrast, the policy paper presented to the UK parliament in the UK in March 2023 does not propose new laws or establishing a new AI regulator, with existing regulators to be given responsibility for the regulation of AI technologies. This is an area of law which is inevitably going to challenge the courts in years to come.
AI & Brand Protection
Aside from disrupting longstanding principles of trademark law, AI is providing opportunities for brand owners to better protect and police their brands more efficiently. AI has been available for some years to assist with trademark clearance and watching searches which has driven efficiencies into these activities and has allowed for more comprehensive, accurate search results. Similarly, AI can be used to assist with due diligence exercises which is particularly useful when verifying substantial trademark portfolios. However, the technologies continue to develop and improve, with new capabilities and efficiencies being rolled out almost continually. Across all areas of trademark protection and enforcement, AI is also increasingly playing an important role. For example, technologies exist which can scan the internet, identifying possible misuses of both names and logos. However, as infringers get ever more sophisticated and utilize the darkest corners of the web, it is inevitably often a frustrating game of catch up for brand owners to track down and identify the source of infringing products.
Behind the scenes, AI can also assist with the management of trademark portfolios, with AI applications being used to allow the management of portfolios to be more efficient, whether through the use of automated technologies to report trademark filings, examination reports or registrations or for the costing and tracking of trademark filing programs around the world.
To conclude
As we all grapple with these new technologies in our everyday lives, the law is inevitably always going to have to play catch up: technology moves at such a fast pace that it will always outrun the law makers. As a result, the law will have to evolve and adapt to these ever changing, disruptive technologies and the challenges which they place on long standing principles based on laws which were created, in many countries, when the online world was in its infancy. However, as well as the challenges AI technologies are driving – and will continue to drive – efficiencies into trademark management and brand protection, providing more robust mechanisms to ensure that brand owners can protect their intellectual property intelligently.
For further information, please contact:
Kate Ellis, Konexo
kateellis@konexoglobal.com
