The Impact Of Technology On Trademark Law

Written by: Wardé Iskandar – Junior Associate

Throughout the latter half of the 20th century, trademark protection emerged as a focal point within the realm of intellectual property, garnering significant attention from both the judiciary and legislators. The evolving landscape of business practices, catalyzed by the forces of globalization, wielded a profound influence on pushing the boundaries of trademark protection beyond its conventional confines. However, amid this progressive movement, caution becomes paramount to prevent the overextension of intellectual property safeguards.

As we explore the interplay between technology and trademark law, one striking manifestation of this expansionary phenomenon emerges through the concept of trademark dilution. This radical example underscores the need for a balanced and nuanced approach to safeguarding trademarks in the face of ever-evolving technological advancements. At the juncture of technological advancement and intellectual property protection, a fundamental question comes to light:

How does the rapid advancement of technology significantly impact the realm of trademarks and the strategies employed by businesses to protect their unique identities?

In this article, we delve into the challenges posed by technology's influence on trademark law, examining the complexities and implications of its far-reaching impact on intellectual property rights in the modern age.

Artificial Intelligence’s influence on Trademarks:

From its inception, trademark law has aimed to eliminate confusion and safeguard original marks. In this process, consumers forge emotional connections with brands, leading to a tangible interaction between the two. However, what if this emotional bond is fractured and substituted with an artificial connection? Indeed, the choices made by humans are now being supplanted by choices made by technology. In the present era, it is technology that guides public preferences. Within this context, it is artificial intelligence (the “AI”) technology that has taken the place of the common or average consumer. As the average consumer is replaced by the artificial consumer, the foundational elements of trademark law are inevitably impacted. Although the transition was anticipated to take time, it has already manifested.

To date, there has been only one case that could be described as dealing with the interaction between AI and trademark law. Courts have not considered the AI infringement to be a legitimate ground for incurring liability. Perhaps the most notable case in this regard is “Lush v. Amazon”[1], through a bidding process. This in essence means that when the word “lush” is searched on google search engine, google redirected the link of the amazon website on the basis of that keyword, and transferred the user to the platform. The case of infringement was particularly solid because of the fact that even searched on the search portal of the amazon website, the projected results from the website showed similar results, but the not the original “Lush‟ brand products. It became a clear case of infringement as although there was no sale of “Lush‟ products on the amazon website, it showed similar products. Consequentially, the court stated that Amazon was liable of trademark infringement in the given scenario.

Redefining trademark law amidst e-commerce evolution:

The use of AI-powered e-commerce platforms to manipulate brands is a growing concern. As AI becomes more sophisticated, it is likely that courts will see more cases involving this issue. This is because AI systems can be used to generate content that is similar to trademarks, create fake reviews, and even impersonate real consumers. The legal implications of this trend are unclear. The concept of the "average consumer" is central to trademark law, but it is not clear how this concept should be applied in the context of AI-powered systems. Courts may need to develop new ways to assess the likelihood of confusion caused by AI-generated content. It is also possible that courts will need to consider the role of AI in the definition of "use in commerce." Traditionally, trademarks can only be registered if they are used in commerce. However, it is becoming increasingly common for AI systems to use trademarks without human intervention. This could lead to challenges in determining whether a trademark is being used in commerce. The development of AI is likely to have a significant impact on trademark law. Courts will need to adapt the law to address the challenges posed by AI-powered systems. In the meantime, trademark owners should be aware of the risks posed by AI and take steps to protect their brands.

Artificial intelligence’s disruptive role: redefining trademarks and consumer autonomy

Now it is only intuitive to assert that AI is the next step in this series of revolutions in the market domain, and consequently Trademark law. Online retailers are employing AI based algorithmic systems to make prospective recommendations to buyers. In doing so, they read and formulate data based on search histories, preferences, buying profiles, and countless other miniscule details. It is imperative to note here that through this employment of AI based systems, the very essence of Trademark is being left redundant. AI can be well assessed a plausible tool to deprive customers of their discretion in choosing the products of their choice. It is intriguing and perturbing at the same time to see that although the customer is under the impression that he is seeing the products of his choice, or is exercising control over his decision-making process, however, most consumers are unaware of this limitation set to their choices.

Overall, we imagine that the courts would treat AI in a similar way to the internet service providers as per the decisions discussed above. If the AI or the programmers behind the AI have been put on notice of the potential infringing activity, only then will they be liable under trademark law.

Further, we expect that the assessment of the “average consumer” and issues of confusion and association will be transposed into the world of AI and trademark law by courts assessing the actual algorithms behind the operation of AI applications in trademark cases. The algorithm provides the parameters of the purchasing decision. This obviously raises the issue of confidentiality and commercially sensitive information, but if infringing activity is occurring this may be the only way to assess it.

In conclusion, the revolution of AI will undoubtedly leave an indelible mark on various domains within the legal field, and trademark law will be no exception to its influence. While AI might present challenges to trademark law, the fundamental underpinnings of trademark protection remain resilient and resistant to disruption, primarily due to the enduring emotional connection between consumers and brands. AI impact on trademark law and intellectual property law more widely cannot be overstated and in fact it is quite possible that some of the historic concepts and principles of trademark law will simply no longer apply, or more likely will have to be interpreted differently to reflect the new retail reality. Reducing monopoly, increasing competition and ensuring quality products for the consumer are the ideals that serve as the purpose of Trademark law. Technological advancements should not be hindrance to the same, but in fact should serve as tools to facilitate the process.