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.