AI REVOLUTION: THE FUTURE OF TRADEMARK LAW

Introduction

Artificial intelligence has gripped every facet of our daily lives in today’s 21st-century modern world. The number of benefits it offers is so gigantic that humans are getting more dependent on these mechanisms directly or indirectly, knowingly or unknowingly. It has shaped our society in a way we cannot imagine, and it continues to do so without us even realising it. Artificial Intelligence[1] has made our lives so easy. Think for a minute how absolutely surprised people would be half a century ago if they came across a technology that would get all the monthly groceries delivered to their doorsteps, merely by speaking to a device. They would have definitely not believed it. Today, life has become so simple that small voice commands such as “Alexa, add chocolates to my shopping list” gets our jobs done in an instant! The number of consumers who are getting AI-based devices is rapidly increasing all across the world, thereby making it seamlessly easy for the transition of complete AI takeover in various aspects of our lives.

History- A Perspective

The number of shifts that the market-places have encountered cannot be expressed. From village market squares to an online E-Commerce shopping platform, marketplaces have undergone a lot over the course of their evolution, and they continue to evolve day by day. Every marginal shift in the way people shop has resulted in significant changes in the jurisprudence of trademark law. Trademark law was essentially established during a time when the concept of shopping included requiring assistance from shop employees, who were seen to be more suited to guide consumers to the items they needed. Considering the fact that these employees had been taught this skill, they were very unlikely to make a mistake in distinguishing the trademarks of various items offered in their stores, knowing the tiniest details of the product, its application, and the legitimacy of the company that produced it. But when development, massive globalisation and industrialisation started taking place, such practices of informing the customers transitioned to big glass windows in stores displaying all the good-looking branded products which invited the customers in on their own accord, based on their varying degrees of self-interest. As a result, the value of trademarks has grown dramatically. However, it also increased the likelihood of a prospective client becoming confused between two brands of an item. This further saw a change with the advent of online retailing and social media revolution in the 1990s, and it is only fair to say that the marketplace that we know as of today will see yet another massive evolution with the emergence of AI in all corners of the world.

Recent Developments

With all the simplicity comes another important issue that we need to solve whilst AI is still in its nascent stage of development. The more we depend on AI mechanisms, the more we are gradually and inevitably reducing human contact and the classic practice of consumer’s interaction with brands. It is at this juncture where the author would like to pause and briefly highlight the forthcoming parts of the article and what it seeks to achieve.

Trademarks form an integral part of any marketplace or places where the consumer buys any goods or services. Be it a trip to the shopping mall or visiting the local shopping complex, or even spending an hour in front of the TV – we see trademarks everywhere because they are an indispensable tool that businesses use in order to promote their goods and services over those of their competitors. According to the World Intellectual Property Organisation, “a trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.”[2] The most important feature a trademark has to offer is that it acts as a source of reliability which helps consumers in limiting the amount of research they need to do before buying a product because these unique symbols act as proof of the product’s quality, characteristics, features, etc. However, with the involvement of AI in this interaction between consumers and brands, the traditional trademark laws may face changes, either for the good or the bad. This article seeks to explore the relationship between AI and consumers and how the AI boom may impact trademark law as we know.

Relevance of AI in Trademark Law

Humans have always left their mark on the things they invented or discovered. Some thousand years ago when there was no word for trademarks, craftspeople used to put a distinctive mark on the products they made in order to assure their customers that they were the ones who made it as well as provide them with a stamp of quality.[3] Ancient trademarks such as these can be found in various cultures such as the Chinese, Egyptian, Roman, Greek, etc. These marking systems however had no legal clout. Trademarks started gaining legal reputation slowly, as people began infringing on quality sellers’ products and producing cheaper generic versions of the same, which had a two-pronged problem; firstly, the sellers or the craftsmen needed to be protected from such people who infringed on their products and secondly, consumers who had no idea about the generic version would end up being deceived.

Interestingly, it is observed that the very basis of trademark laws were the interactions and roles that the consumers had to play. A conventional look at the history of trademarks shows us that these laws were essentially formulated to help consumers reduce their search costs thereby ensuring that they rely on a set of source indicators which in turn protected them from being deceived into buying products they did not desire.[4]

Trademark laws hence require the involvement of consumer interactions because they are extremely anthropocentric and, because of this, the respective law functions based on (i) the human psyche, (ii) its conduct in the way it thinks and involves itself in the process of purchasing goods or services – which also invariably from the basic tenets of trademarks. It is indubitable that till today, we always think of consumers as those who possess imperfect recollection and an average intelligence[5] which formed a reciprocity relationship with the sellers that they chose to transact with. However, the surge of AI in all of its forms may impact this process by interfering in a manner that it removes human interaction entirely. It is prudent to note that Trademark laws have withstood and surpassed the Self-Service revolution, the E-Commerce revolution as well as the Social Media revolution, but whether it will continue to stand after the AI boom is the looming question that we all face as legal scholars and businessmen alike.

AI And Trademark Liability

The judiciary is yet to record a preponderance of matters pertaining to AI Technology and trademark liability. Despite this, there have been several examples, particularly within the last quarter, which have already paired AI and trademark liability together. More crucially, these have primarily been debated in industrialised countries such as the European Union. For example, in the well-known Google France case[6], in which the problem revolved over keyword advertising, the Court did not find Google liable. As per the judgement, there had been an absence of active engagement on Google’s behalf in the advertising of terms, as well as the automated facilitating of targeted keywords.

Additionally, many judgments issued by European courts could provide a comprehensive solution to the problems posed above. As in the case of Loreal v. eBay[7], wherein another issue had been the sale of fake items on digital networks, eBay had not been made accountable. The judges based their decision upon the fact that the company was also not actively involved in the fraud. The European court upheld a similar decision in Coty v. Amazon[8], in which Amazon was found not guilty on similar grounds.

Nevertheless, notwithstanding the scarcity of instances addressing the intersection of AI with Trademark Law, authorities haven’t regarded AI violation as a justified reason for bearing guilt. “Lush v. Amazon”[9] is by far the most significant case throughout this context. The dispute under this case emerged when Amazon used a pricing mechanism to acquire the phrase “Lush” from Google. This simply implies that whenever the term “lush” is entered on Google, Google redirects the page to the Amazon website based on that phrase and transfers the visitor towards the network. The allegation of infringing was especially powerful since, even when viewed on the Amazon website’s search gateway, the estimated findings from the domain displayed comparable results, but not really the actual “Lush” trademark merchandise.

This became a straightforward example of infringement since, while there were no sales of “Lush” products on the Amazon marketplace, identical products were displayed. As a result, the court determined that Amazon was guilty of trademark infringement in the specific situation. This is indeed a concerning position because there have been few occasions whereby E-commerce companies relying on AI-based computational algorithms have played prominent roles in brand manipulation.

Conclusion

To conclude, the artificial intelligence revolution will certainly influence every area of law, and trademark law will be no exception. The research and reform of the legal framework are thus always necessary, so as not to transform trademark law into a simple repository of loopholes that cannot bear trademark claims. No concrete proposals are offered to this effect in order to adapt artificial intelligence quickly into the heart of trademark law, particularly in the context of the Indians, as to how exactly the law has to be fashioned or constructed.

Nevertheless, it is important to be transparent in this respect and to remember the values on which to prevent falsification and exploitation of a brand’s goodwill. The principles that serve as the aim of trademark law are to reduce monopoly, to increase competition, and to provide quality products for the consumer. Progress in technology should not impede it, but rather actually serve as instruments for the process to facilitate.

 

Vidhatri Mysore & Saumya Adhana are third-year students pursuing B.A. LL.B. (Hons.) from Christ (Deemed to be University), Bangalore.


References

[1]Hereinafter referred to as AI.

[2]Wipo.int. 2021. Trademarks. [online] Available at: <https://www.wipo.int/trademarks/en/> [Accessed 5 September 2021].

[3]San Diego Union-Tribune. 2021. Exhibit explores ancient Roman ‘designer’ labels, trademarks. [online] Available at: <https://www.sandiegouniontribune.com/sdut-exhibit-explores-ancient-roman-designer-labels-2016jun16-story.html> [Accessed 5 September 2021].

[4]Posner, R. and Landes, W., 2003. The Economic Structure of Intellectual Property Law. Harvard University Press, pp.166-168.

[5] Reiterated by the Apex Court in Cadila Healthcare Ltd v. Cadila Pharmaceuticals Ltd, 2001 PTC 541 (SC).

[6] Google Franc SARL & Google Inc. v Louis Vuitton Malletier SA, ECLI:EU:C:2010:159.

[7] Loreal SA v. eBay, ECLI:EU:C:2011:474.

[8] Coty v. Amazon, C-567/18.

[9] Cosmetic Warriors and Lush v Amazon.co.uk and Amazon EU, [2014] EWHC 181 (Ch).

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