Excerpts of Artificial Intelligence in Trademarks Law

Work like a human, not a machine?

Artificial Intelligence (AI) is an area of computer science that accords importance to the creation of intelligent machines that work and reacts like humans. The term ‘Artificial Intelligence’ was first coined by John McCarthy in 1956, the focus of which was “Thinking Machines”. Speech recognition and learning are one of the many activities that are expected to be performed by the computers without human interference i.e. artificial intelligence.

AI can be categorized as Weak AI and Strong AI. Apple’s Siri is embedded with a technology to provide assistance, in other words, it is trained to perform a particular task, thus, this form of AI is categorized as a weak AI. On the other hand, Strong AI, also known as artificial general intelligence, is an AI system with generalized human cognitive abilities. When presented with an unfamiliar task, a strong AI system is able to find a solution without human intervention.

is one of the notable personalities from the profession of advocacy, who predicted way back in 1673 that machines can aid and assist advocates in the practice of law. He is one of the fathers’ of AI and in his observation and experience said: “It is unworthy of excellent men to lose hours like slaves in the labour of calculation which could safely be relegated to anyone else if machines were used”. As a part of an experiment to prove his theory, he presented the machine with four arithmetic operations in UK, saying, ‘The only way to correct our reasoning is to make them as tangible as the mathematicians, so that we can find our error at a glance and when there are disagreements between people, let’s calculate and see who is right.’

Presently, Artificial Intelligence has made its way into a number of areas such as:
a. Health,
b. Education,
c. Business,
d. Finance,
e. Manufacturing &
f. Law.

Relevancy of Artificial Intelligence in Trademarks Law

The fundamentals of trademarks law revolve around humans and human interaction with brands and purchasing processes. Commonly used terms in adjudging trademarks are imperfect recollection of consumers, phonetic, visual, structural and conceptual similarity, confusion among members of trade, common man of average intelligence – they all are centred on human beings and their interaction.

In an age where humans are replaced on a large scale by machines, where AI is predominant and human involvement has become bare minimum, a series of concerns inevitably arises with respect to the credibility, reliability and security of such transactions.

Buying and selling of goods on a daily basis is a common phenomenon. In order to save time and manage functionality and mobility of products more efficiently with limited time to spare, we have online services to our rescue with respect to buying almost any kind of product available under the sun. In the name of creating job opportunities at one end and reducing employment at the other end of business, it leaves an imbalance in the industry in such a manner that the nature of work that requires skill, intelligence and rationale thinking is being taken over by machines and work that requires zero skill is increased to such an extent that unskilled labour has established dominance over skilled labour force in the job market.

Bearing all this in mind, conventional retailing is responsive. The customer reacts to logos, colours, name, symbols and brands and then makes a purchasing decision. AI in its wholesome functionality is predictive retail, it predicts what products a consumer might be looking for based on the past purchases or recently viewed items on a particular portal and then correspondingly makes suggestions for product purchases and buys products automatically on the consumer’s behalf, without their input. So, Can AI be confused? Does AI have imperfect recollection? Does AI take the place of an average consumer? Does AI consider the reputation and goodwill of trademarks? Can AI associate trade marks? If the AI suggests a product that infringes a registered trade mark or is a counterfeit, would the AI be deemed as a secondary infringer?

To illustrate some of the issues associated with automatic purchasing, it was reported in January 2017, that a six year-old girl from Texas, asked a favor of Alexa (Amazon product) “Alexa could you play dolls house with me and get me a dolls house,” which prompted Alexa to order a doll house and, oddly, a bag of cookies. A cute story, but the little girl was not involved in the product selection or product purchase decision. Further, when this story was reported on local news, it is claimed that other Amazon Echo products were triggered, on hearing the report, to order dolls houses in other homes. Presumably different dolls houses were ordered based on the individual parameters of each Alexa system in each home. However, there wasn’t a human factor as no human was involved in the product suggestion and purchasing process, beyond the initial very wide product request of the little girl.

In an era where all your bank accounts and other details are either saved or linked to websites for quick payments, where access to data such as viewing SMS or making calls to your phone is allowed, automatic entry and verifying of OTP number and placing orders via various electronic modes is encouraged, maybe the little girl after all knew what she was doing as she would have learnt to conduct herself this way, simply by imitating her parents.

To date, there has been a record of only one case that projects the interaction between AI and Trademark Law. InCosmetic Warriors and Lush v Amazon.co.uk and Amazon EU ([2014] EWHC 181 (Ch)), Amazon was not held liable for infringing Lush’s trademarks when an Adword advertisement did not incorporate the Lush trademarks and was linked to the Amazon product suggestion system, which is a form of AI.

Brief facts of the case are as follows: Lush manufactures and supplies cosmetics, including colourful soaps and bath bombs under the “Lush” brand. The online shopping retailer Amazon sells via its website both its own goods and the goods of the third parties. Lush branded products are, however, not available from amazon.co.uk. Lush owns the community trade mark for ‘Lush’ in respect of cosmetics and toiletries, including soap, and sued Amazon for trade mark infringement in the following scenarios:

a. Internet advertising and bidding on keywords via Google Adwords

Amazon had bid on certain keywords, in particular ones including ‘lush’, within the Google AdWords service so as to trigger a sponsored link advertisement appearing on the Google search engine results page whenever a consumer typed ‘lush’ into the search box.  If a consumer clicked on the relevant link he was taken to the amazon.co.uk website and presented with the opportunity to browse or purchase equivalent products to Lush Soap.  In some cases the Lush mark appeared in the search results and in some it did not appear but sponsored advertisements to equivalent or similar products to those sold by Lush, such as ‘Bomb cosmetics’ or ‘Bath Bombs’ which were available for purchase on the Amazon website. There was no blatant message either within the advertisement or on the Amazon site that Lush products were not available from Amazon, nor that the Lush Bath Bomb was not available for purchase on the Amazon website.

b. Searchers using Amazon’s own search engine

This related to the operation of Amazon’s own website. If, for example, a consumer searched for the word ‘Lush’ in the relevant “department” of Amazon’s UK site, after the letters ‘lu’ are typed, a drop down menu appeared offering various options such as ‘lush bath bombs’ or ‘lush cosmetics’. If the consumer clicked on these, a new page offered similar products to those available from Lush without any overt reference to the Lush item not being available. 

Infringement was also established in this scenario. The Lush registered trade mark appeared on the amazon.co.uk website in various places.  In this scenario both the search engine operator and the advertiser were one and the same, and the purpose and effect of Amazon’s use of the Lush mark was to induce consumers to purchase non-Lush products.

The matter was adjudged and after serious considerations of issues, Amazon was held to be not liable for trademark infringement as the product suggestion was a form of AI.

To conclude, owing to the speed of invasion of AI into every legal field, each one of them will be affected in a manner entirely different to the other and the impact is subjective. Trademarks Law might not be an exception to such intrusion. Therefore, we need to keep pace with the dynamic fluctuations and ensure its impact on the application and interpretation of Trademarks Law and avoid adverse effect or impact of such a nature that the fundamentals of Trademarks Law stands defeated.

Surana & Surana International Attorneys