Why and How Artificial Intelligence Affects Trademarking
For more than a century now, trademark laws have protected the distinctiveness of products and seller identities. A drastic change to those laws, however, seems to be on the way with what has been called the fourth “revolution” of consumer spending – where once products were mediated by the recommendations of a shop owner, before being offered to the customer themselves in groceries stores, and then online, consumer spending now takes places almost completely with reliance on search engines and through programmed bots, in short, via artificial intelligence.
Below, we consider the main talking points concerning how this shift towards computerised choice affects the need for the protection of distinct trademarks. How important is emotional connection to products with the arrival of AI? And will trademarks still have a function in the face of the consumer’s growing reliance on more completely rational and less emotional AI-generated product choice?
A New Average Consumer
Trademark law assumes the fallibility of the consumer in making a rational product choice. By guarding the (visual, connotative, emotional) distinctiveness of a seller’s mark, trademark laws recognise the role of human experiences of mood, desire, emotional evocation as a part of commercial competition. The “average consumer” in the context of trademark law is therefore “reasonably observant and circumspect” in the sense that their judgement is liable to being swayed or slurred by merely evocative (but not necessarily authentic or reliable) representations.
The comparatively impeccable memory and programmed processing power of AI lends Alexa and other AI mechanisms much higher sensitivity to the most rational choices for consumers. Since it does not rely on marks as cues for a product personality, AI can identify and trace products to their source – without confusion over aural, visual and conceptual similarities. In light of this computerised clarity, trademarks seem to lose a significant part of their influence over consumers. As a result, many legislators are now discussing whether standards for the distinctiveness of marks should be altered given that the ‘average consumer’ can now harness computerised standards of rational data processing.
Some foundational questions still remain regarding the ability of AI to provide a totally rational or satisfactory product choice, for example, the extent to which AI can be seriously considered infallible where its programming is to some extent reliant on human criterion or human-created code; or whether AI will ever be capable of fully accounting for the range of human emotions usually invested in product choice in order to provide a fully personally satisfactory, even if not rational, choice.
AI as Secondary Infringer
If AI consumer programs are so powerful and emerging as key mediators in the product-selection process of the modern consumer, can they be made culpable when they suggest or authorise the purchase of counterfeits or alternatively branded products? In 2014, the UK High Court held that Amazon had infringed the trade mark of cosmetics retailers LUSH by directing users to cosmetics products similar to those sold by LUSH when they used the word as a key search term. Most AI programs and interfaces will now require a trade mark infringement notice before being capable of being held liable as a secondary infringer.
AI and Commercial Competition
The almost total reliance on AI many consumers now practice could afford many competitors of large brands significant commercial advantages. Although it remains to be seen to what extent sites and bots like Alexa will be penalised for suggesting the products of alternative brands based on search engine optimisation processes, AI’s ability to process rationally the data attached to exponentially more products and sellers provides smaller commercial competitors with a far more open field for competition. This may become even more the case when AI programming becomes more sensitive to Ad impression, reviews, and more diverse product categories, in addition to its existing reliance on Adwords.
As AI consumer proxies respond to the popularity or potency of branding on human consumers, distinctive trademarks will play an even more crucial role in strengthening the commercial competitiveness of products.