The Tussle between Trademark and Artificial Intelligence

INTRODUCTION

The term “Artificial Intelligence” is ubiquitous nowadays; artificial intelligence (AI) has indeed got a revolutionary impact in our ways of life. AI has influenced different spheres of society; it has an impact on medical field, education sector, finance and farming sector as well.

AI has indeed improved the efficiency and reduced the cost of production as well.¹

Trade Mark symbolizes a product’s uniqueness, quality, and service; they basically act as a brand identifier, which helps the customer to distinguish the product of their choice from the others.²

They consist of logo, letter, number, word, phrase, sound, smell, shape, picture, movement, aspect of packaging, or a combination of these.³

The objective behind implementation of trademark law is granting protection to the rightful manufacturers of the product who manufacture and sell the product. The protection is granted

But, in recent times, with emergence of new technologies, the purpose of trademark has been hindered, with emergence of artificial intelligence, Internet of things (IoT), block chain etc the features of trade mark law are challenged.

These disruptive technologies have intense impact on brand suggestions and purchase process.⁴

THE CHANGED BUYING HABITS OF THE CUSTOMERS

It is very much evident that masses have shifted to online shopping rather than going to shops by burning their fuel. The most ubiquitous among them would be Amazon, Flipkart, Nykaa etc.

These E- Commerce platforms use AI platform to recommend products, this is done by analyzing various factors by use of AI, like past purchases, search history, buying profile.

The recommendation may show up low cost and compatible product which would satisfy the customer, this shall lead to misdirection of customers and they might shift from the previous brand.

In the world of AI, there is no filter between the product and the consumer, the decision to buy a product is on the hands of consumer without any intervention, the filter here pertains to the shopkeeper or the shop assistant. This is what happens in traditional selling and purchasing, the customers goes to shop, the shop assistant makes him aware of the different products and the customer as per his satisfaction buys the product.

Now, there is no human but AI which works as a filter, recommends product and brand to the customer based on their past purchases.

The AI possesses all the information regarding the brands, the products of the brands on sale. Though many customers do not rely on this recommendations based on past purchases but many customers may delegate the purchasing decision to AI as well.

Even though if the consumers have not delegated the buying decision to AI, but it does have an impact on customer’s views on products, brands, market.

Now, these factors have implications on trademark law, trademark concerns customer’s purchasing process, the interaction between customer and brand. After all the information available to the customer helps him to make a choice, it helps in taking the purchasing decision.

Earlier, the AI concern was related to patents only but now, it has become a challenge for the trademark law as well.

The consumers are confused with regard to the originality of the product, originality of the brand. There are various competing products in the market, and so because of this there is infringement of trademark, there is improper use of trademark on low quality goods, it misleads the reputation of the original brand.

THE POLARITY BETWEEN ARTIFICIAL INTELLIGENCE AND TRADEMARK LAW

Nowadays, everyone relies on online shopping, particularly the youngsters of this era, they go with the trend. Amazon has an amazing product known as “Alexa”⁵ by Amazon’s Echo.

This product is based on the voice recognition software programme; similarly there are other products by different brands such as, Apple’s “Siri”⁶, Google Home devices, they interact with humans, the interaction is quite natural, these products are designed in such a way that they understand the cultural aspects and human emotions.

The world is advancing more towards the humanoid robots, to make the interaction seem more natural of course, the “Pepper”⁷ which behaves more in a human like manner, it understand the mood and behaves accordingly.

Speaking of Alexa, apart from interacting with humans, it holds the capacity to order things automatically basing on latest market trends and brand advertising.

The question here would be the basis on which Alexa does this, can it be possible that only few brands are kept in Alexa’s system and others are not?

These are very apt examples on how the AI is replacing a natural consumer, slowly and eventually humans are being removed from the purchasing capacity.

The basic challenge is how the tenants of trademark would deal with AI? How to deal with the new artificial consumer?

AI does not possess the intensity and emotion with which a human scrutinizes brand value.

AI recommends product based on the delivery speed and price, it becomes a damage causing factor for the brands.

CASE LAW RELATING TO TRADE MARK AND ARTIFICIAL INTELIGENCE FRAME WORK

Cosmetic Warriors and Lush v Amazon.co.uk and Amazon EU (2014)

Amazon was reprimanded by the court for infringing with Lush trademarks. This was concerned with the issue of keyword advertising, whenever lush was searched on Google, customers were directed to Amazon’s website. And moreover, in Amazon’s website, when the word Lush was typed in search bar, it directed to products related to Lush products but not Lush products.

Amazon did not sell Lush products but due to the AI, it was showing similar products based on that keyword. And hence, this implied as infringement.

The court held Amazon accountable for the infringement and ruled the decision against the E-commerce giant. It was difficult for the customers to scrutinize whether those products belonged to the brand they are searching for or not.

The United Kingdom High Court had also stated that such situations shall arise in future as well if the AI becomes Customer.

The AI controlling and manipulating the decision of the customer is a matter of concern for the brands as the trademark infringement becomes difficult to tackle.

Similar situation had erupted in Louis Vuitton v Google France; it was with regard to the similar words that show up in Google’s AdWords system, but it was held that Google won’t be liable for it because it was never involved in Keyword advertising business.

CONCLUSION

Presently, we are shifting towards the “shipping then shopping “model, AI being a predictive technology, manages to ship the products before the consumers demand for them. The AI scrutinizes consumer behavior, by way of social Media searches, past purchases etc. It recommends the same kind of stuff; it becomes a filter between the consumer and the product.

The emergence of AI has had an impact on the trademark law but the foundations are pretty stringently strong and it is difficult to manipulate, the loyal customers of a particular brand shall remain loyal if they intend to use the same quality and services of the product.

References

This article has been written from Safeeya Sabeer, from KIIT School of Law, Odisha.