Trade marks are one of the key elements of intellectual property that allow their owners to earn profits based on their name. It works very simply: the more famous you are, the more people know about you and will buy your products. However, there is one caveat that can significantly change this thesis, and that caveat is called artificial intelligence. But why is artificial intelligence so important and how could it affect trade mark law in the future?

THE BASIS OF ALL TRADEMARK INFRINGEMENT DISPUTES

As we know, trade mark owners protect their goods from unfair competitors who may use their reputation to gain benefits at their expense. In resolving such disputes, the Intellectual Property Office or the Courts will analyse the similarity between an older and a newer trade mark.

DOCTRINE OF LIKELIHOOD OF CONFUSION:

This doctrine is designed to determine how similar the goods are to each other and whether there is any unlawful use of reputation by competitors. Thus, examining this issue raises the question of whether the average buyer of a product may be confused by seeing a similar product. Commissions have been set up to address this issue, conducting research and providing their results.

TRADEMARK LAW AND ARTIFICIAL INTELLIGENCE DICHOTOMY:

Trade mark law has originally sought to remove confusion and protect original marks. This process was associated with the development of an emotional connection between the customer and the brand, who literally interact with each other. But what about artificial intelligence, which does not have this connection and replaces the customer?

Currently, there are several examples of artificial intelligence replacing the customer. Alexa, Siri, and Bots are AI-based programs that help customers with their online shopping. Examples of their impact are automatic home delivery of stationery from Alexa and memorisation of preferences from Siri.

Artificial intelligence operates on the basis of a certain algorithm that works almost perfectly. But if it is fraudulent, can AI be considered a secondary infringer?

The answer to this question is not unambiguous, and lawmakers have not yet settled it. In fact, when artificial intelligence buys goods using its own algorithm, it acts based on the distance from the product and its price. Unlike humans, it loses an important element of emotional perception of goods. Therefore, artificial intelligence will not accept “”fake goods,”” and thus the rights of the trade mark owner will not be violated. But at the same time, if false or falsified data is deliberately used, AI will act with an “error” according to the algorithm.