Hey Siri and Alexa, did you infringe a trademark?
It goes without saying how technology has all of us on a leash today. The human race that created technology is now being controlled by it. An individual currently sets up reminders on their devices to remind them to drink water on time or to tell them it is time to sleep. This dependence on technology is gradually taking away the decision-making capacity of people. What was supposed to be an assistant in man’s fast-paced lifestyle is growing to be counterproductive. However, it is not all bad; it cannot be denied that Artificial Intelligence (AI) is transforming the world around us. It is growing to become the go-to technology for organizations wanting to solve highly complex and data-heavy challenges. Although this does make it prone to eventually erase the memory of a conventional method of living. This reliance on AI could lead to a rippling effect on trademark law. It is evident that AI is on its way to change the relationship between consumers and trademarks.
Artificial Intelligence & Intellectual Property Rights
AI has been a technology with promise for decades. The ability to manipulate huge volumes of data quickly and efficiently, identifying patterns and quickly analyzing the most optimal solution can be applied to thousands of day-to-day scenarios. However, it is set to come in the era of big data and real-time decisions where AI can provide solutions to age-old issues and challenges. The increasing proliferation of artificial intelligence across the world necessitates new policies for the enforcement of intellectual property rights. When thinking about AI, patents will likely be the first form of protection which comes to mind, and rightly so. But it is important not to forget the value of other forms of IP to protect AI. A strong portfolio of a variety of different kinds of IP rights is likely to be necessary to provide robust protection.
Current patent laws treat AI software inventions as logical algorithms implemented on the computer. While patent eligibility of algorithms is valid, there is little about how to deal with inventions that are heuristic in nature.[i] In AI, ‘heuristic’ is a technique which allows people to solve problems and make judgments quickly and efficiently. Software is no longer limited to traditional rule-based systems and has increasingly turned heuristic, showing higher intelligence over rule-based systems.
Consumers are in the centre of trademark law. People hear and see trademarks regularly; be it on packages of goods in a supermarket or on an online marketplace. Trademarks accompany goods/services in such ways that potential buyers have the opportunity to perceive them and make a buying decision later on. Considering AI is becoming a persuasive medium for consumers, companies are exploring ways to better understand and target relevant consumers. As a consequence of this, the shopping experience of consumers is reducing and thus people are interacting less with brands. This approach of AI makes the purpose of trademark redundant.
Clash of AI and Trademarks
The advent of voice AI assistants such as Siri, Alexa or Google Assistant has made life easier. At one voice command, these AI assistants can go from switching music being played on a stereo to informing about global humanitarian affairs. People these days have a companion in their AI voice assistant. They can ask them to keep records of day to day tasks, remind them about the upcoming task or even help them in shopping. Voice shopping gained popularity in no time. It takes away the task of physically going to a shop or browse through numerous apps. Voice shopping started predominantly on smartphones, followed by computers. Later, users started using AI assistants for purchasing daily essentials, like household items, apparel, entertainment, music, and movies.
This consumer behaviour of switching to AI voice assistants for online shopping was problematic. It created hindrances for trademark law. The purpose of securing a trademark was to engage with human perception. The distinctiveness provides a product that helps the consumer with a variety of choice. Thus, it keeps the consumer in the driving seat to make decisions. Now in the case of AI assistants, for instance when someone asks Siri to look for a “Red Mug” online. Siri would only suggest one or two brands from thousands available. These brands would show up only because they have paid to be top searches. This takes away the opportunity of other brands to be selected and creates competition issues. It was seen in Lush v. Amazon EU, whenever the term “Lush” was searched on Google; it redirected them to Amazon.co.uk to show similar products as that of the brand Lush. Lush later sued Amazon for trademark infringement as an average consumer would be led to purchase another product sounding the same as Lush, as they relied on Amazon. This practice of purchasing keywords and AI assistants choosing products to purchase is harmful to trademark law. The idea of brand preference would be hindered with this practice. Those who are loyal to their brands would definitely go back to their preference. However, the ones relying on AI assistants would be restricted by Siri or Alexa.
AI comes up with challenges as well as opportunities for brands. It may assume responsibility for setting brand or default purchase preferences, which in turn makes it increasingly difficult for companies to target customers at the critical point of sale. This may pose additional, unique challenges for start-up companies or brands. They will have to now gain market share by targeting the customers of direct competitors. This “brand washing” has implications for all trademark owners, as it results in a purchasing decision that has no direct tie to brand name. Thus it cannot be ruled out that the emergence of AI assistants pose a threat to trademark law. However, brand owners need to think of measures to work in tandem with AI. They will have to come up with innovative methods to build loyalty among their customers. This helps them to prioritize the presence and relevance of their trademarks as competitive options of the purchasing process. AI is here to stay and it would be better for brands to work their way around it or in collaboration with it.
[i] Anandi Chandrashekhar, Current patent laws are inadequate for Artificial Intelligence-related Intellectual Property:Report(Dec.3,2019) https://economictimes.indiatimes.com/tech/ites/current-patent-laws-are-inadequate-for-artificial-intelligence-related-intellectual-property-report/articleshow/72352323.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst