WIPO in its meeting on Intellectual property and Artificial intelligence in November 2020 discussed the impact of artificial intelligence on trademarks and the impact on human perception will determine the registration and infringement of trademarks. Artificial intelligence (AI) has unparalleled potential to facilitate the management of IP, in the context of examination of trademark applications, assessing past trademark oppositions and infringement proceedings. For example, trademark IP offices have implemented several AI technologies for trademark search, trademark review and interaction with stakeholders to improve efficiency and consistency in processing of trademark applications. The trademark image search by WIPOs is an example of an AI tool used for trademark searches and trademark prosecutions[1].
Indian lawyers are still struggling to keep up with these technological advances inherent in AI and learning their advantages and disadvantages. The trademark law was introduced to differentiate the goods and services of one from those of another with an ultimate idea to avoid confusion among the public. However, the Indian trademark law has not changed ever since inception to adapt technological advancements, despite the multiple revolution and technological advancements which do affect the trademark law.
The fundamental concept of trademark is to cover human interaction between branding and purchasing emphasising on the likelihood of confusion for consumers due to phonetic, structural, and visual similarities and imperfect memories of a man with average intelligence and how it affects the purchasing process. With the onset of AI in the online market, these concepts are unlikely to be true and feasible. The existing legal doctrines like imperfect memory as held in the case Cadila Healthcare Limited v Cadila Pharmaceuticals Limited where the SC clarified that “the average consumer is an average intelligence with an imperfect memory,” or likelihood of confusion are old and obsolete. AI will neither have average intelligence of a man nor will the doctrine of confusion be applicable. Thus, there is a demand to change these obsolete doctrines to make trademark law well suited to tackle AI and the technological advances.
AI is likely to affect how trademark law is enforced in circumstance like several trademark applications, registration of new marks, unsynchronized trademark offices, vague and unclear trademark analysis by humans. The anti-counterfeiting measure using AI introduced by Amazon – the Amazon Project Zero[2] is just one of the few examples of companies using AI for trademark or IP enforcement. The AI revolution will impact all the legal fields and will definitely not spare the trademark law as well. It is important for India to take up its game, recognizing the importance of AI inventions in the country and to reform current trademark and IP laws to engage with technological inventions in this area. Intellectual property law should be consistent with AI and monitor progress to maintain transparency in intellectual property law and provide legal solutions for AI inventions.
[1] https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ip_ai_2_ge_20/wipo_ip_ai_2_ge_20_1_rev.pdf
[2] Shubham Borkar and Nitish Daniel, ‘A Comprehensive Review Of Amazon Project Zero (Anti- Counterfeiting Initiative) , Analysis In Detail Of The Policy, Issues, Takedown Mechanism And Its Applicability In India’ 6 March 2019, Mondaq < https://www.mondaq.com/india/trademark/787672/a-comprehensive-review-of-amazon-project-zero-anti-counterfeiting-initiative-analysis-in-detail-of-the-policy-issues-takedown-mechanism-and-its-applicability-in-india>