Artificial Intelligence and Its Impact on Trademark Law

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    Artificial Intelligence and Its Impact on Trademark Law

    The constant development and increasing prevalence of artificial intelligence
    (AI) is changing the world every day. This even holds true in the field of
    trademark law, an important subdivision of intellectual property laws. The
    use of AI has displaced many previously human actions and interactions in
    this field. For this reason, many ideas and principles which had long
    been staples of trademark law will now have to be re-evaluated.

    Trademark Law and AI

    Anyone who registers a trademark will have to abide by trademark laws
    when doing so. Trademark laws around the world today are generally upheld
    by four key principles. These are as follows: the average consumer;
    phonetic, aural, and conceptual similarity; imperfect recollection; and
    blurring of trademarks. Each of these principles date back to the 19th
    century, when the very concept of intellectual property began to be
    formed. At that time, the first trademark laws were developed.

    As the use of AI continues to increase, these principles connected to
    all forms of intellectual property laws including trademark law must be
    called into question. For example, the average consumer might soon be
    generally regarded as an AI program. This is because some AI programs
    might be able to evaluate trademarks or associate multiple trademarks while
    other AI programs might not. If an AI program were to recommend a
    product that has committed a trademark infringement, the question would
    arise as to whether the program has committed a secondary infringement of
    intellectual property rights. Clearly, AI has changed and will continue to
    change long-held concepts in trademark law as well as other laws related to
    intellectual property.

    Why AI Impacts Trademark Law

    Trademark laws were originally created with humans and human
    interaction with brands, products, and services in mind. AI, on the other
    hand, either reduces or removes the human element of such
    interactions. It remains to be seen just how AI may replace the average
    consumer if it even would do so at all. Courts will also have to adjust to the
    new realities of AI as it relates to trademark law. This is because they will
    have to decide if they would have to review AI algorithms during court cases
    which involve AI as it pertains to intellectual property.

    How Trademark Law Might Adapt to AI

    Although no trademark laws have reached such a stage as of yet, some legal
    experts have analyzed the most likely ways in which trademark law might
    adapt to AI. They believe that, for example, AI programs will not be held
    liable for trademark infringements unless they are put on notice of infringing
    activity. This is because AI systems are not intended to violate intellectual
    property laws unless a person uses them in order to do so. When AI
    programs and systems are involved in trademark systems, they are likely to
    be treated in a way which resembles the treatment of Internet service
    providers which are similarly involved in such issues. That being said, in due
    time, any competent trademark agent will have adapted to intellectual
    property laws which have been retooled to suit AI. These intellectual
    property laws including trademark laws would then become part of the
    fabric of the country’s intellectual property landscape.

    AI in Trademark Law and Confidentiality Concerns

    There are several concerns related to confidentiality with regard to AI
    in trademark law. These issues may arise when a court assesses the
    algorithms that allow AI applications to work when it analyzes the details of
    a trademark case. When a court does so, information on intellectual
    property which was originally intended to be confidential and commercially
    sensitive may be made public knowledge. However, in cases of obvious
    trademark infringement, there currently appears to be no other way to
    assess the infringement of intellectual property rights which has been
    committed. In such cases, the protection of intellectual property rights
    must take precedence over confidentiality and privacy.

    There is no doubt that the impact of AI on all intellectual property laws,
    including trademark law, will continue to increase as AI programs become
    more advanced and sophisticated. AI has already become a mainstay of the
    world today and progresses in influence all the time. Therefore, it would be
    unwise to force AI to adapt to existing trademark laws or other intellectual
    property laws. Instead, trademark laws should be interpreted and even
    modified, if necessary, to account for the new dimension to trademark issues
    which AI provides.

    This article brought to you by Exy Intellectual Property Malaysia and Singapore.