This piece has been authored by Sidhant Singh, Second year student, Hidayatullah national law university

  1. Introduction

The term “Artificial intelligence” (AI) has become increasingly common and revolutionized how people live. It was introduced by John McCarthy in 1956, the thought behind this idea was ‘thinking machines.’ With the development of AI, the current definition shifted to the machine’s capability to mimic human intelligence. According to the Oxford English Dictionary, AI is “The theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages”. There are various definitions of AI. However, this foundational definition serves as the basis for analysing legal implications in this area. AI systems are categorized in different ways with a major categorization being Strong AI (performs tasks like a human) and Weak AI (Focuses on just specific narrow tasks).

Earlier, “intellectual” in “intellectual property” was largely about human intellect. However, the definition of “intellectual” in “intellectual property” has now become convoluted, as machines now show intellectual capabilities, and inventive responses through opaque algorithms. Thus, AI creates several issues for the existing Intellectual Property (IP) system, and one of the challenges pertains to trademark law.

  1. How Does AI reshape Trademark Law, Transitioning From Human Interaction To Automated Purchases?

Traditional trademark law is rooted in the 19th century when customers thought that they needed the shop attendant’s ‘help to buy things’. But today, given the radical changes in how the buying and selling of goods is done, trademark law has gone through significant modifications. Given that trademark law now primarily concerns itself with people and their links with brands during the course of buying, basic concepts such as phonetic, conceptual, and visual similarity, as well as confusion between logos, are all centred around people and their interactions with brands. Hence, AI has significantly reduced or eliminated the need for human intervention in the process of recommending and buying products.

Currently, the application of AI in consumer product recommendations and purchases is still in its infancy. Like many of us use AI-powered devices like Amazon Echo, Google Home, and Apple Homepod as personal assistants. However, what if someone uses these devices to purchase a product based on certain standards, but ends up receiving a simulated or inferior product in terms of quality or quantity? In such a situation, would these technical instruments be held responsible for secondary infringement, along with the manufacturer of the infringing product? If so, how does the area of AI fit within the parameters of “likelihood of ambiguity,” “imperfect recollection,” and “average consumer”? These are very challenging questions that require specific justifications as to why AI and trademark law have a point of intersection.

The Amazon Dash Replenishment Service (DRS) is yet another American AI gadget made by the Amazon giant, and can certainly be used as a convenient replenishment service. At present, it functions as a Wi-Fi connected button designed to replenish consumable products. This system enables users to automatically replenish essential items from Amazon when their supplies are running low. Customers select the products they want, schedule automatic deliveries, and DRS simply places the order on their behalf, thereafter Amazon takes care of shipping the selected products to the customer. However, there is a possibility that in future the service might gain the authority to select products on its own. At present, the service is confined to only brand owners, which are members of the DRS. However, as the service becomes increasingly available and attracts more suppliers, there is potential for an expansion in the range of accessible products for consumers. Therefore, AI is likely to play a significant role in making decisions related to product selection. Also, depending on existing lists of products, there might be a gap in trademark protection, leaving owners to discover that their trusted conditions don’t cover essential aspects of a new offering.

  1. Can AI-Driven Keyword Advertising Lead To Trademark Infringement?

While the issue of AI and trademark liability has not yet stepped into the spotlight of legal courts, looking back at cases before the Court of Justice of the European Union (CJEU) over the past decade could provide insights into this question amid the emergence of this new technology. As this new technology gets off the ground, this intriguing question continues to be on the agenda for legal scholars. The central issue in Louis Vuitton v. Google France was keyword advertising and the automated selection of terms within Google’s AdWords system. The court determined  that Google may be held liable for trademark infringement if it actively participated  in the keyword advertising system.

The UK High Court ruled against Amazon in the case of Cosmetic Warriors Ltd and Lush Ltd vs Ltd and Amazon EU Sarl. The court found Amazon guilty of violating Lush’s trademarks. The problem  arose when Amazon obtained the keyword “Lush” from Google through a bidding process.  As a result, when users searched for the keyword LUSH, they were directed to Amazon’s website. However, the products displayed on the site were similar to but not original Lush brand products. Although Amazon did not have actual sales of products from Lush, it was still clearly considered an infringement for the use of AI to offer similar products based on one keyword “Lush”, and Amazon was thus held liable in this case for infringement.

The rise of AI is undeniably affecting trademark law and other IP regulations. It’s plausible that some fundamental principles of trademark law may undergo a transformation in the marketplace, requiring a fresh interpretation to align with the evolving retail landscape dominated by AI programs. Such prospects may seem a little horrifying, as e-commerce platforms driven by AI algorithms are increasingly influencing and shaping brands. Therefore, it will not be surprising that the judiciary will probably treat AI the way it treats internet service providers as the case laws noted earlier suggest. However, the only way to stop this situation from occurring is to inform the AI or the people responsible for the AI about the possible infringing activity. Only under such circumstances will they be subject to liability in trademark law. It also remains to be seen how courts will define and apply trademark law principles such as “likelihood of confusion” and “average consumer”, and evaluate the ensuing consequences over time. Like, the Supreme Court in the case of ‘Cadilla Healthcare Ltd. v. Cadilla Pharmaceuticals Ltd.’ ruled that the term “average consumer” should be understood to mean a person of average intelligence, with an imperfect recollection. However, this definition seems to contradict the nature of AI, which lacks imperfect recollection and average intelligence. The court also recognizes that as technology advances, both interpretations and legal perspectives evolve accordingly. Now courts use the imprudent consumer in interpreting trademark fundamentals. However, the evolving landscape indicates that the so-called “artificial consumer” is going to appear increasingly as a reference marker in the future for the courts, particularly in the context of algorithmic systems.

  1. Conclusion

In conclusion, considering the development of AI, the face of IP laws, including trademark laws, will change rapidly. Therefore, it is certain that as AI programs continue to advance, their influence on IP laws—including trademark law—will only increase. Currently, predicting the exact solutions to these emerging issues remains challenging. Hence, it would not be prudent to compel AI to conform to the existing trademark or intellectual property laws. Rather, the focus should be on gaining a detailed comprehension that trademark laws require interpretation and might even require amendments to handle new elements introduced by AI, particularly in trademark disputes. Furthermore, it is particularly important, because these technological advancements must not become obstacles in reducing monopolies and promoting fair competition and the assurance of quality products for consumers. The primary purpose of trademark law should be to serve as a facilitative tool for these objectives rather than an obstacle.



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