Trademarks, Plant Varieties & Other IP Rights
Trademarks, Plant Varieties & Other IP Rights

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Short Guides about Other IP Rights and AI

Trademark and AI

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  • The emergence of AI technologies is changing the way we perceive and approach intellectual property law, introducing new complexities and considerations. 
  • This shift extends to trademark law, which has traditionally focused on human perception and is now evolving to confront the challenges posed by AI technologies. Some examples include voice-activated assistants (like Amazon's Alexa), autonomous purchasing systems, and IoT-enabled devices.
  • A novel perception of the laws is required to address issues like liability, the role of the "average consumer," and the diminishing significance of visual branding. Some of those new angles in trademark law that has emerged with the advancement of AI is explained below.

 

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The Challenges Posed by AI to Established Trademark Principles 

Traditional trademark law places human perception at the center. Today, there is greater reliance on AI assistance when making purchasing decisions. Examples include “voice assistants” like Alexa or automated recommendation of products based on data analysis like “previous purchases, customer ratings, browsing history, and information about complementary products, or products usually bought together”. This might be challenging the established principles of trademark law.  

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For example, confusion between trademarks is assessed taking into account the “average consumer”. However, what the average consumer might confuse might not be confusing for AI assisted purchases. On the other hand, what an average human consumer might not confuse might be confusing for an AI because of algorithmic flaws. 

Moreover, it is considered that the human consumer has an “imperfect recollection” of trademarks as they do not consider the trademarks side by side. This concept might be irrelevant for AI powered purchases. 

Another aspect of trademark confusion is that takes into account the visual, phonetical and conceptual similarities between trademarks. Considering the rise of voice assistants in shopping the phonetic similarities might gain more significance compared to the visual similarities in the future.

Also, the function of trademarks such as origin, quality, communication, investment, advertising might not have the same importance as it used to. While humans might depend on the origin function of a trademark to assess the quality of the product, AI assisted consumer choices would rely on a vast amount of data. 

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The Role of AI in Trademark Infringement and Liability 

The autonomous and decision-making capabilities of AI might complicate the assignment of liability in trademark infringements. 

Previously courts have dealt with AI involvement in trademark infringements in the case of keyword advertising and e-commerce platforms. (CJEU C-236/08 Google France v. Louis Vuitton and CJEU C-324/09 L’Oréal v. eBay) In keyword advertising, AI algorithms suggest search results based on previously determined keywords that include trademarks. When the user makes a search on a trademark, it is presented with not only the results of the owner of the trademark but also with alternative results. Such alternative search results are not connected with the trademark owner but to others who have similar products. 

Considering liability, the service providers are just liable on a secondary basis if they do not play an “active role” in the infringement that gives it “knowledge of or control over the data stored”. Without such active involvement the service provider is not liable, unless it has obtained knowledge of unlawful activity and it did not remove or disable access to such content. 

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Normally the liable party is the one who is involved in the “selection of the search results”. If the platform is involved in such selection as an operator or controller of the AI algorithm it might be considered liable. If it is the advertiser that makes such selection, then it will be liable of any infringement.

The liability established in previous keyword advertising cases may also apply to future instances where AI algorithms play a role in trademark infringements. E-commerce platforms and their AI empowered recommendation systems on trademark searches that suggest alternative results are exemplified in this regard (see The UK High Court Lush v Amazon).

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The Dual Function of AI in Counterfeits 

AI enhances efforts measures against counterfeit products. For example, Amazon's Brand Registry leverages AI and machine learning to detect and remove counterfeit products from its platform, demonstrating how these technologies can strengthen enforcement efforts. Another example is Entrupy which is an AI empowered solution for product authentication of luxury and sneaker brands, setting apart counterfeits.  

At the same time, counterfeiters utilize AI technology to facilitate their illicit activities. For example, Disney has asked Microsoft to stop its Bing AI image tool that generates outputs infringing on its trademarks. 

References

Research Papers on AI and Trademarks, Plant Varieties and Other IP Rights