Artificial intelligence call for views: trade marks
Updated 23 March 2021
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Introduction
Trade mark registration protects a right holder’s branding, for example a trading name or logo. This means the right holder can distinguish their business’s goods or services from those of its competitors, generating goodwill and brand recognition. Registration empowers the right holder to prevent unauthorised use of their intellectual property.
The legal framework for trade marks is the Trade Marks Act 1994 (the “TMA”) together with the Trade Marks Rules 2008.
The main consideration for artificial intelligence (AI) and trade marks is infringement. The following section sets out the way the law deals with this topic and asks questions about how the increasing prevalence of AI technology could impact this.
Infringement
Many of the traditional concepts relating to trade mark infringement are founded on human interaction with branding and human involvement in the purchasing process.
Law
Section 10(1) and (2) of the TMA set out where a person infringes a trade mark, including where use of a sign causes likelihood of confusion.
The human element in this is how to measure whether a sign is identical or similar, and whether there is a likelihood of confusion. This is assessed by the standard of the “average consumer”. According to case law, the average consumer is reasonably well-informed, reasonably observant and circumspect but can only rarely directly compare the different marks. This means they must place their trust in the imperfect picture in their mind. Additionally, their level of attention is likely to vary according to the goods or services in question.
Policy
We already have AI technology which makes purchasing suggestions, using algorithms to predict what we want to buy. If AI, having learnt an individual’s preferences, developed to a stage where it removed human interaction from ordering and restocking products, this could have consequences on the current legal framework.
Questions
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If AI technology becomes a primary purchaser of products, what impact could this have on trade mark law?
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Are there, or could there be, any difficulties with applying the existing legal concepts in trade mark law to AI technology?
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Does AI affect the concept of the “average consumer” in measuring likelihood of confusion?
More questions arise when considering who is held liable for trade mark infringement. Many of these will be for the courts to determine, however the language in section 10 of the TMA references “a person”. This clearly anticipates that a legal person infringes a registered trade mark.
Questions
4.
What is the impact of AI on the drafting of section 10 of the TMA? Can AI “use in the course of business” a sign which may be confusingly similar or identical to a trade mark?
5.
Can the actions of AI infringe a trade mark?
6. If AI can cause trade mark infringement, does this change who could be liable? Should it be the owner, the operator, the programmer, the trainer, the provider of training data, or some other party?
Respond to the call for views by emailing [email protected]