Artificial Intelligence and Trademark Law in the Digital Age

The ability of the computer to take decisions by itself came to be known as artificial intelligence. Artificial Intelligence is a general term given to algorithms and software systems capable of adapting their code and actions based on both observable information and identifiable patterns in data. 

Artificial intelligence (AI) is, at its very core, a computer that has been thoughtfully programmed in such a way so as to mimic natural innate intelligence of humans by way of learning, logical reasoning or decision making. The probability of risks associated with human error can be reduced by the usage of AI. Many companies from around the world have started to market AI systems to lawyers at a cost-effective rate to undertake document review, to scan through voluminous information, to assess and interpret contracts and to perform legal research, assist in trademark clearance searches and policing. Some companies claim to use machine learning and natural language analysis to quickly determine if a mark is able to be protected. Such products also enable a party to police its mark, evaluating potential infringers, and monitor the trademarks of its competitors.

With AI technology, tasks can be performed much faster guaranteeing greater accuracy and in turn saving lawyers’ time. There are numerous tools and software services that have been introduced in the market to carry out pre-filing searches to determine the likelihood of confusion between marks with respect to similarity of marks and/or similarity of goods/services which have a robust knockout or preliminary screening process that quickly gives you clearance to advise your client to use and adopt the proposed trade mark at a much faster rate and in turn capturing semantic, structural, and textual similarities between trademarks - word, device, logos, images etc. with a larger success rate.

Currently in trade mark law, we have the common tenets of the average consumer, phonetic, aural and conceptual similarity, imperfect recollection and blurring of trade marks all of which have their roots from the 19th century when Trade Mark Law was first developed. Taking this as a first concept, the average consumer - under the current law is deemed to be reasonably well-informed, circumspect and aware, but rarely encounters the chance to initiate direct comparisons between two marks and rather relies on his average intelligence of imperfect recollection of the relevant marks. 

However, to date, there is only one proper case that has come to light with respect to the intersection between AI and trademark law. In the case of Lush v. Amazon, the court reprimanded Amazon for infringing upon trademarks belonging to Lush. The details of the case encapsulates that Amazon which had bought the keyword Lush from a Google bidding process somehow redirects the term Lush to its website whenever it is typed on the Google search engine. Also, when it is searched on the Amazon website, it redirects to a page suggesting other marks with the term Lush and not to the products sold and displayed by Lush on its website. The AI of the website is configured as such that it suggests similar products based on the keyword searches which makes it a clear cut case of infringement. The court had held Amazon liable for infringement - Cosmetic Warriors and Lush v and Amazon EU ([2014] EWHC 181 (Ch)]. 

Powerful and intelligent legal technological advancements such as these have paved the way for trademark attorneys to efficiently harness the power of artificial intelligence and use it on a daily basis advising clients like never before in turn meeting your deadlines, revenue objectives, client satisfaction,  and profitability effectively. Usage of such a disruptive technology will continue to rise in the near future. 

About the author

Yashvardhan Rana is an Intellectual Property Lawyer with a particular focus on IP prosecution – from registrability analysis and risk management to providing legal opinion on the use, adoption and registrability of trademarks to be launched by by Fortune 500 companies as well as top FMCG’s in India. He is a part of the Trademarks, Copyright and Design Prosecution team at Inttl Advocare, Noida, India. He also advises on trade mark protection strategies, copyright issues and specific assignments relating to Design Law, certain aspects of strategic brand management and advisory, IP auditing and due diligence to portfolio management, transactional advice and agreement drafting, permitted user/registered user recordals and other procedural compliances. He is based out of New Delhi and is a member of Bar Council of Delhi, Delhi High Court Bar Association, APAA and INTA. In January, 2020 he was appointed as a Member of INTA sub-committee - The Trade Mark Reporter Committee and in 2019, he was listed in the Top 50 Emerging IP Players Award worldwide by The IPR Gorilla, 2nd Edition held in Dubai. He has also authored several articles on Intellectual Property Law and Practice which are published in leading blogs, websites, journals and magazines.