ABSTRACT
Artificial intelligence (AI) is rapidly transforming the landscape of intellectual property, presenting both opportunities and challenges for trademark law. This paper delves into this evolving intersection, exploring how AI algorithms are influencing various aspects of trademark protection. The paper highlights the growing need for robust trademark laws in the digital age. While AI offers potential benefits such as streamlining trademark registration and enhancing enforcement capabilities, it also raises new concerns. The use of AI-generated content makes monitoring infringement more complex, and the very nature of AI decision-making challenges traditional legal concepts like “likelihood of confusion.”
Drawing on a recent court case (Lush v Amazon)[1], the paper examines the evolving boundaries of trademark infringement in the online environment. Additionally, it explores the specific challenges and opportunities presented by AI in the Indian context. By analyzing these multifaceted issues, the paper aims to provide valuable insights for policymakers, legal professionals, and brand owners navigating the evolving world of trademarks in the age of AI. It underscores the need for adaptation of current legal frameworks to ensure continued brand protection and a fair marketplace in the face of this transformative technology
KEYWORDS
Artificial Intelligence (AI), Trademark Law, Trademark Registration, Trademark Enforcement, Consumer Behavior
INTRODUCTION
The realm of intellectual property (IP) protection is undergoing a significant transformation fuelled by the ever-evolving landscape of artificial intelligence (AI). While the academic discourse has largely focused on the impact of AI on patents and copyrights, the influence on trademark law remains a relatively unexplored territory. This research paper delves into this under-examined intersection, exploring the subtle yet profound ways AI algorithms are permeating various facets of trademark law. The paper unveils the multifaceted nature of AI’s influence. We will examine how AI algorithms are being utilized to assist applicants in navigating the trademark registration process, from identifying potential hurdles to suggesting strategies for a smoother application journey. Additionally, the potential of AI for conflict resolution between newly applied trademarks and existing ones will be explored. Furthermore, we will investigate the growing role of AI in trademark enforcement, particularly in detecting unauthorized online use of trademarks, including social media infringements. This exploration extends beyond the immediate impact on trademark law. We will delve deeper, investigating the opportunities and challenges AI presents for various stakeholders in the brand ecosystem. Consumers’ purchase decisions, marketers’ consumer targeting strategies based on behavioral data, trademark examiners’ evaluation processes, judges’ determinations on infringement, and brand owners’ efforts to reach consumers and enforce their rights – all will be examined through the lens of AI.
The paper leverages insights from recent discussions among scholars and policymakers who have convened to explore the intersection of AI and trademark law[2]. These dialogues aim to bridge the gap between trademark experts, AI developers, and relevant stakeholders. The discussions center on understanding how AI tools handle brand-related communication, trademark examination, infringement, and enforcement, along with their limitations. By analyzing this information, the paper will explore the potential consequences for trademark law and propose solutions for regulating AI systems and data flows within the current legal framework. Additionally, areas of concern will be identified, prompting suggestions for revising current trademark laws and policies, potentially extending to related areas like advertising regulations and transparency obligations. The paper acknowledges that AI technology can alleviate the burden associated with the sharp increase in trademark applications and registrations, freeing up examiners and applicants to focus on more complex conflicts. However, it will critically examine the claim that AI merely assists in implementing existing trademark regulations. The paper argues that the registration process itself is undergoing significant adjustments, potentially altering the established principles of trademark law. One such potential shift is the possibility of AI transforming trademarks into abstract attributes through machine learning, potentially leading to a disconnect between real-world consumers and their reactions to logos and brand identities.
By delving into these multifaceted issues, this research paper aims to shed light on the evolving landscape of trademark law in the age of AI. It will provide valuable insights for policymakers, legal professionals, brand owners, and any stakeholder invested in the future of intellectual property protection.
RESEARCH METHODOLOGY
This research employs a descriptive approach to analyze the potential impact of Artificial Intelligence (AI) on Trademark laws. The primary focus is on understanding the various ways AI may influence different aspects of trademark law and its enforcement. The research relies on secondary data sources for in-depth analysis. These sources will include Scholarly articles and legal journals that discuss the intersection of AI and intellectual property rights, particularly trademarks, official documents from relevant government agencies addressing the potential implications of AI on trademark law and enforcement strategies, and reports and articles published by industry experts and news outlets that explore the practical applications of AI in trademark management and potential legal challenges. The collected data will be analyzed through a qualitative approach. This will involve critical reading, thematic analysis, and identification of key trends and potential areas of legal ambiguity arising from the use of AI in trademark-related processes. By employing a descriptive approach and utilizing a variety of secondary sources, this research aims to provide a comprehensive overview of the potential impact of AI on Trademark laws and pave the way for further exploration of this evolving legal landscape.
REVIEW OF LITERATURE
The rise of artificial intelligence is impacting trademark law in several ways. Artificial intelligence is having a growing impact on trademark law, presenting both opportunities and challenges. The emergence of Artificial Intelligence (AI) has revolutionized various industries, including the retail sector, leading to significant changes in consumer shopping habits. As AI technology becomes more prevalent in commerce, the need for robust trademark laws has become more apparent. Trademarks play a crucial role in protecting brands and ensuring consumer trust and loyalty. With the increasing use of AI in e-commerce and marketing, the potential for trademark infringement and counterfeiting has also grown. This has led to a renewed focus on the importance of enforcing and strengthening trademark laws to safeguard the integrity of brands in the digital age. As artificial intelligence (AI) continues to advance and integrate into various aspects of our daily lives, it is fundamentally changing the way we interact with and consume goods and services. This growing reliance on AI technology is reshaping traditional business models and challenging the existing legal frameworks that govern intellectual property rights, particularly trademarks. In conclusion, the proliferation of AI in daily life has underscored the critical role of trademark laws in protecting brands and fostering a competitive marketplace. As technology continues to evolve, it is essential for policymakers, businesses, and legal experts to work together to address the unique challenges and opportunities presented by AI in the realm of trademarks. Only by staying ahead of the curve and implementing effective strategies can we ensure the continued success and integrity of brands in the digital age. Furthermore, the use of AI in the creation and management of trademarks presents new challenges for trademark owners and legal professionals. AI algorithms can generate vast amounts of data and content, making it difficult to monitor and protect trademarks effectively. As a result, there is a growing need for innovative solutions and strategies to adapt to the changing landscape of trademark law in the era of AI.[3]
As consumer preferences evolve, businesses are recognizing the need to adapt and innovate in order to meet the changing demands of their customers. This shift in consumer behavior has led to a surge in startups entering the AI market, eager to capitalize on the opportunities presented by this rapidly growing industry. With the potential for substantial financial gain, companies are investing heavily in AI technology in hopes of improving customer experience, generating new revenue streams, and cutting costs. The forecasted increase in global business value derived from AI, as predicted by Gartner[4], is a clear indicator of the immense potential that this technology holds for businesses of all sizes. As the AI market continues to expand, companies must stay ahead of the curve and embrace the opportunities that AI presents in order to remain competitive in today’s rapidly changing business landscape.
The retail industry report titled “Frontier(less) Retail”[5][6] sheds light on the strong inclination towards online shopping among millennials and Gen Z, with an overwhelming majority of 89% of US millennials and 91% of Gen Zers in the US expressing a preference for online purchases. The report also highlights the prominence of security concerns among consumers, particularly in China, where 96% of respondents expressed fear of purchasing counterfeit products and 94% worried about payment security. Overall, these insights present a challenge to trademark law and the traditional retail landscape. With the shift towards online shopping and the reliance on AI, businesses need to adapt their strategies to meet the changing preferences and expectations of millennials and Gen Zers. The report highlights the need for retailers to prioritize security measures, ensure fast and reliable delivery services, and embrace AI technology to enhance the customer experience and remain competitive in the ever-evolving retail industry. Furthermore, the report underscores the significance of fast delivery in the online shopping experience. It reveals that 43% of UK millennials and 53% of Gen Zers expect their online orders to be delivered within two days, indicating the growing demand for quick and efficient shipping services.
In the realm of intellectual property (IP), the influence of artificial intelligence (AI) has traditionally been centered around patent law, with a focus on safeguarding AI technologies.[7] However, the impact of AI now poses a more significant hurdle for trademark law. Through previous technological advancements such as self-service shopping, e-commerce, and the rise of social media, trademark law has successfully maneuvered its way.
Furthermore, the question of secondary infringement by AI programs in suggesting products that infringe on registered trademarks raises new challenges for trademark law. As we navigate this new landscape where AI plays an increasingly significant role in consumer behavior, it is clear that existing trademark case law may need to be reevaluated or reinterpreted to accommodate these technological advancements. The notion of the average consumer, with its inherent limitations of imperfect recollection and varying levels of attention, may not apply to AI. AI, as a computer program, possesses the ability for perfect recollection and does not experience confusion or uncertainty in recognizing brand names. The traditional parameters for determining confusion or likelihood of confusion between trademarks may not be relevant in the context of AI-driven purchasing decisions. In light of the advancements in AI technology and its integration into the retail sector, the implications for trademark law are profound. The traditional principles of trademark law, such as the concept of the average consumer and considerations of similarity between marks, were established in a time when human involvement in purchasing decisions was paramount. However, with the emergence of AI as a consumer, these principles may no longer hold true.
Case Law Lush V Amazon
The High Court ruled that Amazon’s use of the LUSH trademark in sponsored advertisements and on its website was a violation of trademark laws. Amazon used the term “Lush” in its Google ads and search function, even though it didn’t sell LUSH products. The plaintiffs, Lush, are the manufacturers and suppliers of the LUSH brand of cosmetics, and they hold the registered trademark for LUSH in the cosmetics, toiletries, and soap category. The defendants, Amazon, are part of the world’s largest online shopping retailer.
Lush chose not to sell its products on Amazon due to concerns about maintaining its ethical reputation. However, Amazon still used the keyword ‘Lush’ in its Google AdWords and search engine to promote its own products. Lush claimed that Amazon violated their trademark by using the same sign for similar goods or services, which is prohibited under the Directive.
The decision examined three categories of potential violations of the LUSH trademark.
Amazon bid on the keyword “Lush” in Google AdWords and used the term in their advertisements. When consumers clicked on the ad, they were taken to the Amazon website where they could buy similar products, but there was no indication that Lush products were not available on Amazon. The deputy judge ruled that Amazon’s use of the LUSH mark in sponsored advertisements, even though they did not sell LUSH branded goods, constituted trademark infringement. Consumers would likely expect to find LUSH products on Amazon based on the advertisements. The deputy judge stated that most consumers trust Amazon to provide a variety of reliable products and would not expect Amazon to advertise Lush soap unless it was true. The judge disagreed with Amazon’s claim that consumers could easily tell that the advertised goods were not associated with Lush.
Amazon committed a second type of infringement by using the keyword “Lush” to display sponsored advertisements that promoted similar products instead of featuring the Lush brand. These ads would be triggered when a consumer searched for “Lush bath bomb” and would redirect them to the Amazon website where they could purchase similar products. However, there was no indication that the Lush bath bomb was not available for purchase on Amazon. The deputy judge ruled that Amazon’s use of the LUSH mark as a keyword without including it in their sponsored advertisements did not constitute trademark infringement. He believed that consumers would be aware of sponsored ads from rival companies and would not be confused by seeing Amazon’s ad when searching for Lush. Additionally, he thought that consumers would expect a Lush ad to mention the LUSH mark. Amazon was found to be infringing on Lush’s trademark by using the keyword ‘Lush’ in its search function. When customers searched for ‘Lush’ in the ‘Beauty’ department, Amazon would suggest similar products without explicitly stating that they were not from the brand Lush.
The deputy judge ruled that Amazon’s use of the LUSH mark as a search term on its website, even though it did not sell any LUSH products, was considered to be a violation of trademark laws. Amazon claimed that its search engine was essential to its business model and should not be restricted. However, the deputy judge believed that the public’s right to access technology did not give Amazon the right to ignore intellectual property rights, such as the trademark of LUSH, and treat it as a generic term for a category of products. This decision is a major advancement in trademark law concerning the internet. The court has clarified that using someone else’s trademark in a website’s search engine, without offering the associated goods, will be considered infringement.
Impact Of AI On Trademarks In India
The use of AI in creating trademarks raises questions about their eligibility for protection under Indian law. Trademarks must be distinctive and capable of distinguishing one entity’s goods or services from another, but determining the distinctiveness of AI-generated marks presents a unique challenge. Additionally, issues of ownership and inventorship become complex when AI autonomously generates trademarks, requiring adaptation of current legal frameworks to address attribution and ownership. AI and trademarks in India have brought about significant changes in the legal concept of trademarks. Traditionally, trademarks have been used to distinguish businesses and connect branding to consumer behavior. However, with the introduction of artificial intelligence (AI) in the online world, concepts such as “imperfect recollection,” “confusion,” and comparisons based on phonetic, conceptual, or visual impact may become less relevant. This is due to AI algorithms reducing the number of product options for individual consumers by suggesting products based on their search history, preferences, and past purchases. Integrating AI tools into the trademark examination process can enhance efficiency and accuracy, streamlining the registration process. The incorporation of AI in the examination of trademarks by India’s intellectual property offices may expedite the overall registration procedure and improve the protection of trademarks. Monitoring trademark infringement becomes more challenging with the rise of AI-generated content, but AI can also be used to detect unauthorized use of trademarks online, assisting businesses in protecting their brand integrity. As AI becomes more integrated into the trademark landscape, legal challenges and ethical considerations arise, requiring a balance between innovation and the protection of intellectual property. India’s legal community is actively engaging with these challenges to encourage technological advancements while upholding fairness and protection principles.[8]
Case Law M/S Kibow Biotech v. M/S The Registrar of Trade Marks
In this case M/S Kibow Biotech, believed to be the creator of an AI system, sought to register a trademark. However, concerns were raised as the AI system was listed as the proprietor of the trademark. The court ruled in favor of the Registrar of Trade Marks, dismissing Kibow Biotech’s claim. The court’s decision was based on the Trade Marks Act of 1999, which specifies that only a “person” can apply for and own a trademark. The Act’s definition of “person” does not include AI systems. According to the current interpretation of Indian law by the court, AI systems are not eligible to be recognized as trademark owners. This ruling establishes a precedent in India which could impact future decisions relating to AI and trademark ownership. It emphasizes the importance of considering potential revisions to the Trade Marks Act to accommodate the changing landscape of AI in the creation and ownership of trademarks.[9]
SUGGESTIONS
In light of the discoveries unveiled in this esteemed research paper Presents a series of recommendations to effectively navigate the profound influence of artificial intelligence on trademark laws.
In light of AI-driven consumer behavior, it may be necessary to reevaluate concepts such as the “average consumer” and “likelihood of confusion.” New parameters should be considered to accurately assess trademark infringement when AI influences purchasing decisions.
Foster international collaboration: The impact of AI on trademarks is a global concern. Collaborative efforts between countries to establish common legal frameworks and enforcement strategies can ensure a consistent approach to protecting intellectual property rights in the digital era.
Invest in public education: It is crucial to educate consumers about the potential risks of AI-driven trademark infringement. By launching educational campaigns, we can empower consumers to recognize and avoid counterfeit products.
Harness AI for trademark protection: While AI presents challenges for trademark enforcement, it can also be utilized as a powerful tool. AI-powered systems can assist in monitoring and detecting trademark infringement online, enabling businesses to safeguard their brand reputation.
Establish clear guidelines for AI-generated trademarks: The legal framework must adapt to effectively address the uniqueness and ownership of trademarks created by AI. This could involve establishing specific criteria to determine which AI-generated marks can be protected, as well as defining ownership rights when AI is involved in their creation.
CONCLUSION
Artificial Intelligence (AI) is technology that can think and learn like humans. It has changed the rules for trademarks, which are special names or symbols that represent a company or product. This has created new problems to solve, but also new ways for companies to succeed. Challenges are things that are difficult or tricky to do. It’s like when you have to solve a puzzle or learn a new skill, it can be tough but you can keep trying and eventually figure it out. Using AI more in online shopping and advertising can make it easier for people to copy others’ trademarks and sell fake products. The rules for who owns trademarks made by AI might need to change. AI can also change how people shop, making it harder to tell if a product is a knockoff. This could create new chances for businesses to adapt and grow.
Streamlined Registration means using AI tools to make the process of registering a trademark faster and more accurate. Looking Forward means thinking about how AI will continue to change and improve the way trademarks are protected and created in the future. AI-powered Enforcement means using AI technology to find and stop people from copying other brands online, which helps businesses keep their brand safe. Innovation means that AI can change the way brands are made and marketed, creating new and special experiences for customers. As robots and computers become more involved in trademarks, it’s important for people who make laws, lawyers, and companies to work together to deal with the new problems and chances. We need to find a way to encourage new ideas while also making sure people’s ideas are protected. Laws about trademarks might need to be changed in India to fit with how robots are being used to make and own trademarks. If we all work together, we can make sure that robots help businesses grow and compete while also keeping brands safe.
BUSTHANUDEEN K
FACULTY OF LAW, DELHI UNIVERSITY
[1] Cosmetic Warriors Ltd and Another v Amazon.co.uk Ltd and Another D [2014] EWHC 181 (Ch) https://www.casemine.com/judgement/uk/5a8ff7b960d03e7f57eb1856
[2] Yuling WU and Jiaqi TAN, The Impact of AI Technology on the Trademark Field, (2023-05-11) https://www.sptl.com/newsinfo/5899006.html?templateId=585306
[3] Lee Curtis and Rachel Platts, AI is coming and it will change trade mark law.
[4] Global Artificial Intelligence Business Value, GARTNER INC, https://www.gartner.com/en/newsroom/press-releases/2018-04-25-gartner-says-global-artificial-intelligence-business-value-to-reach-1-point-2-trillion-in-2018
[5] J. Walter Thompson, New trend report: Frontier(less) Retail, JWT Intelligence(06-15-2016) https://www.vml.com/expertise/intelligence
[6]Rachel Arthur, Future Of Retail: Artificial Intelligence And Virtual Reality Have Big Roles To Play, FORBES, (Jun 15, 2016,02:15pm) https://www.forbes.com/sites/rachelarthur/2016/06/15/future-of-retail-artificial-intelligence-and-virtual-reality-have-big-roles-to-play/?sh=3eb852db7f9d
[7] Aditya Jain & Vishakha Sharm, Navigating The Legal Challenges Posed By AI On Intellectual Property, LEGAL SERVICE
[8] Dahiya Neelam, India: The Intersection of AI And Trademarks, MONDAQ, (10 January 2024) https://www.mondaq.com/india/trademark/1409950/the-intersection-of-ai-and-trademarks
[9] M/S V-Guard Industries Ltd vs The Registrar Of Trademarks & An 2023/DHC/000137 (SC) https://indiankanoon.org/doc/41986441/