Artificial Intelligence and Trademark Law

Septembra Lesane
In recent years Artificial Intelligence (AI), which reduces the role of the human being in the product suggestion and product purchasing process, has rapidly presented challenges to some of the historic concepts and principles of trademark law as we know it.  AI now raises several questions related to trademark law, involving confusion, imperfect recollection, the average consumer, and secondary infringement.
 
The impact of AI systems in everyday life and the process of buying products and services, which in essence is the focus of trademark law, is increasing. It is predicted that by 2020, 85% of customer service interactions in retail will be powered or influenced by some form of AI technology. AI global revenue is predicted to skyrocket from $643.7 million in 2016 to $36.8 billion in 2025. Another report from advertising agency J Walter Thompson suggests that 70% of so-called millennials appreciate brands using AI technology to showcase their products, with a report from Statista suggesting that 38%percent of consumers receive better purchasing guidance with AI than without.
  
At its very foundation trademark law is all about humans and human interaction with brands and the purchasing process. Trademark law buzz words such as imperfect recollection, phonetic, conceptual and visual similarity, confusion and the average consumer all center around human beings and their interaction with brands. AI effectively reduces or, at its most extreme, completely removes the human being from the product suggestion and product purchasing process. 
 
In today’s society AI is used in our everyday lives, whether we recognize it or not. Below are a few examples of current AI in retail:

• Recommendations Based on Your Order or General Product Suggestions

The shopping giants have AI systems in place which provide product suggestions and recommendations based on a variety of parameters including your browsing history, what others have bought and your purchase history. These targeted product suggestions are made through AI. This suggestion framework at the very least has substituted the human shop assistant of old with AI. 

• Amazon Echo and Google Home Devices

 
Amazon’s Echo product is run by a voice recognition software program called Alexa and is essentially AI. Although at present a default setting prevents Alexa automatically ordering products, even with the default it makes product suggestions to consumers based on various parameter such as past purchasing decisions. This removes a crucial part of the product selection process frequently considered in trademark law. Alexa is the one analyzing the market; it has all the market and branding information, not the consumer. If a consumer asks Alexa for tea, what happens if Alexa suggests an infringing product and the consumer buys it?

• Shopping Assistants

https://www.youtube.com/watch?v=GsWYq3stF5g  
AI is starting to appear in the form of virtual shopping assistants or personal stylists. One such example is Mona, a personal shopping app that learns customer preferences and then makes purchase suggestions based on the user’s style and price bracket. Mona learns from customer feedback to adapt and tailor the suggested items and the more you use it, the more it learns. It is entirely possible that in future Mona, or applications like Mona, will reach the stage where the customer can simply request a whole new wardrobe and Mona will select, order and deliver it.
 
 
As previously stated, there are several conflicts arising from artificial intelligence and trademark law. A common conflict that arises centers around the idea of the average consumer. In current law the average consumer is deemed to be reasonably well informed and reasonably circumspect and observant, but rarely has the chance to make direct comparisons between marks and must instead rely upon imperfect recollection of the relevant marks. Furthermore, the average consumer’s level of attention varies according to the category of goods or services in question. These are all inherent human “faults” built into trademark law. 
 
We must address important questions such as: when AI is the consumer, do these parameters still apply? Would AI be likely to suffer from imperfect recollection? Does an AI’s level of attention vary according to the product? This is unlikely since AI does not have a memory like humans, and it is a computer program and is capable of perfect recollection. There is often a large amount of debate in UK trademark cases over who is the average consumer in the market under consideration. With AI, is it now the average consumer? Is there an average AI consumer with parameters of purchase varying in each household?
 
Another conflict centers around the concept of confusion or likelihood of confusion in trademark law as to whether trademarks are considered similar, is unlikely to apply to AI. If an AI program has a perfect recollection, it will not be confused as to the brand name of a product. Can AI associate trademarks? Does AI consider the reputation of trademarks? Does AI even consider brand names in purchasing decisions, which may solely be based on price, quality and speed of delivery and the like? If the AI program suggests a product that infringes a registered trademark or is a counterfeit, would the AI be deemed a secondary infringer? 
 
AI will undoubtedly revolutionize trademark prosecution and enforcement over the next few years. Therefore, it is important to initiate both national and international discussion on the evolution of IP law and policy in an increasingly AI-driven world.