Trademarks are an integral part of intellectual property rights. Trademarks concern themselves with purchasing process and the areas pertaining to the interaction between brands and the customers[1].
Historically, people purchased goods when the basic tenets of trademark law already existed. In shops, an assistant helped individuals and acted as “filters” between the product and the consumer of the good. Such products were generally not branded. These assistants guided the customers as they were the only ones with proper knowledge of the product. As the world turned towards modernisation, super markets came into the picture. These removed such assistants from the process of product selection as customers started making decisions alone. Super markets all products were on display for the customer to view and choose from.
Brands came into the picture and elaborate information regarding the product was shared with the customer through visual representation or phonetics of the brand. This made the customer self-sufficient with ample knowledge of the product through product branding. Then came the era where the internet was introduced. Here too, the customer was solely in control of the purchasing decision however, it was subjected to a massive influence by the social media and celebrity intervention.
As technology is growing and expanding, artificial intelligence has started providing assistants such as Amazon Dash, Mona, and AI robot through its applications such as consumer chatbots, Goggle Home, Alexa from Amazon etc. Therefore, it becomes imperative to speak about the impact AI might have on the purchasing decision of the customer as the influence of such AI filter strengthens. With access to large scale data regarding the customer, AI applications act as an assistant, a filter which provides recommendations based on past purchasing decisions of the customer, even when not delegated to do so.
In 2017, an article in the Harvard Business Review stated that such automated filter provided by AI turns the purchasing process from a “shopping-then-shipping” model to a “shipping-then-shopping” model.[2]Which primarily means that unlike the traditional process of the customer first choosing the product and then getting it shipped to them, the AI algorithms have now started decoding your preference and shipping the commodity to you, where the payment is made only after the customer tries out the product based on their liking.
This in turn saves resources and helps in gaining efficiency in the purchasing process.[3] Therefore, only a limited number of products are made available to choose from. The customer may believe that they are the sole decisionmaker in this process but clearly that is a myth.[4]
Generally trademarks can be registered based on two criteria namely, the selected mark is capable of being graphically represented and the same is of a manner that it distinguishes the services and goods of one undertaking from another.[5] It gives the person exclusive rights over such mark. Therefore, the law is based on the idea of “human frailty” and its aspects such as “confusion”, “imperfect collection”, “slurring of trademarks”,[6] “unwary customer”, “likelihood of ambiguity”, the visual and conceptual impact and the comparison between trademarks. However, these are not addressed anymore. With the advent of AI, customers do not see the full range of product and brand choices available to them, thereby reducing the importance of trademarks.[7]
Recently, Amazon introduced a Dash Replenishment Service‟ (DRS) system.[8] In scenarios where there is a low supply of a product, it lets the customer order supplies from Amazon automatically. The customer is simply required to choose the product, the rest of the processing, including the payment is automatically executed by the system. This further takes away the choice of the customers with regard to brands. It would be safe to assume that as technology progresses, the AI applications may start having the discretion to choose the brand for the customer as well.[9]
However, even an AI assistant is capable of suggesting biased options.[10] This is because a key component of AI is machine learning. Under this the machine recognises patterns in the data and learns things by itself. Their decisions are based on patterns that are received by them.[11] The input of such patterns is done by humans who are inherently biased. Further, in case of a trademark infringement, there is a confusion as to who would be considered as the “average customer” and in turn held liable, given the AI application’s role in the purchasing process with close to no human intervention.[12]
Clarity on the same is provided by the courts in numerous cases. In Louis Vuitton v Google France[13], the court held that the liability would not be on Goggle in the matter of automatic facilitation of keywords in keyword advertising provided by Google’s AdWords system. It was upheld that an active participation by Goggle would be necessary for such liability.Further, in L’Oréal v eBay,[14] the court did not hold eBay liable for selling counterfeit products on its website owing to lack of knowledge regarding the infringing activity.
The same stance was taken by the courts in the Coty v Amazon[15]case.[16] However, in Cosmetic Warriors Ltd and Lush Ltd v Amazon.co.uk Ltd and Amazon EU Sarl[17], Amazon was held liable for trademark infringement due to a direct and active involvement. Here, when the customer typed the word “lush” on the search engine of google, they got redirected to Amazon’s website and were shown similar products, rather than showing the original products of the brand “Lush”. The same thing happened when the customer tried finding the products of this brand on the Amazon website. It seemed as though this brand does not exist altogether.[18]
This was a case of actively confusing the customer as they could not tell if such similar products belonged to lush or not. Therefore, it is seen that the AI application’s liability would depend on its active participation in the infringing activity and a proper take down procedure for such cases of infringement.[19]Thereby, having clear regulatory mechanisms to curb certain activities and govern the actions of such artificial intelligence is paramount. Specific laws need to be
[1] “Trademark Law Playing Catch-up with Artificial Intelligence?” WIPO, June 2020, https://www.wipo.int/wipo_magazine_digital/en/2020/article_0001.html.
[2] “Trademark Law Playing Catch-up with Artificial Intelligence?” WIPO, June 2020, https://www.wipo.int/wipo_magazine_digital/en/2020/article_0001.html.
[3] Tripathi, Harsh Pati. “Impact of Artificial Intelligence (AI) on Trademark Law …” Centre for Intellectual Property Rights Research and Advocacy, National Law School of India University, Bangalore, 2021, https://iprlawindia.org/wp-content/uploads/2021/04/Harsh-Pati-Tripathi.pdf.
[4] “Trademark Law Playing Catch-up with Artificial Intelligence?” WIPO, June 2020, https://www.wipo.int/wipo_magazine_digital/en/2020/article_0001.html.
[5] Obhan, Essensee. “Trademarks Comparative Guide – Intellectual Property – India.” Welcome to Mondaq, Obhan & Associates, 15 Oct. 2020, https://www.mondaq.com/india/intellectual-property/788896/trademarks-comparative-guide.
[6] “Trademark Law Playing Catch-up with Artificial Intelligence?” WIPO, June 2020, https://www.wipo.int/wipo_magazine_digital/en/2020/article_0001.html.
[7] Tripathi, Harsh Pati. “Impact of Artificial Intelligence (AI) on Trademark Law …” Centre for Intellectual Property Rights Research and Advocacy, National Law School of India University, Bangalore, 2021, https://iprlawindia.org/wp-content/uploads/2021/04/Harsh-Pati-Tripathi.pdf.
[8] “Amazon Dash Replenishment.” AMAZON DEVELOPERS , Jan. 2021, https://developer.amazon.com/en-US/alexa/dash-services.
[9] Tripathi, Harsh Pati. “Impact of Artificial Intelligence (AI) on Trademark Law …” Centre for Intellectual Property Rights Research and Advocac,y National Law School of India University, Bangalore, 2021, https://iprlawindia.org/wp-content/uploads/2021/04/Harsh-Pati-Tripathi.pdf.
[10] Tripathi, Harsh Pati. “Algorithm Based Systems and the State: A Brief Inquiry.” Tech Law Forum @ NALSAR, 13 Nov. 2020, https://techlawforum.nalsar.ac.in/algorithm-based-systems-and-the-state-a-brief-inquiry/.
[11] Kokane, Sonali. “The Intellectual Property Rights of Artificial Intelligence-Based Inventions.” Journal of Scientific Research, vol. 65, no. 02, 2021, pp. 116–119., https://doi.org/10.37398/jsr.2021.650223.
[12] “Trademark Law Playing Catch-up with Artificial Intelligence?” WIPO, June 2020, https://www.wipo.int/wipo_magazine_digital/en/2020/article_0001.html.
[13] 3 Google Franc SARL & Google Inc. v Louis Vuitton Malletier SA, ECLI:EU:C:2010:159.
[14] L‟Oreal SA v eBay, ECLI:EU:C:2011:474.
[15] Coty v Amazon, C-567/18.
[16] “Trademark Law Playing Catch-up with Artificial Intelligence?” WIPO, June 2020, https://www.wipo.int/wipo_magazine_digital/en/2020/article_0001.html.
[17] Cosmetic Warriors and Lush v Amazon.co.uk and Amazon EU, EWHC 181 (Ch), 2014.
[18] Tripathi, Harsh Pati. “Impact of Artificial Intelligence (AI) on Trademark Law …” Centre for Intellectual Property Rights Research and Advocacy, National Law School of India University, Bangalore, 2021, https://iprlawindia.org/wp-content/uploads/2021/04/Harsh-Pati-Tripathi.pdf.
[19] “Trademark Law Playing Catch-up with Artificial Intelligence?” WIPO, June 2020, https://www.wipo.int/wipo_magazine_digital/en/2020/article_0001.html.
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