Introduction
A trademark can be defined as a symbol, name, word, or indicative sign; adopted by a legal enterprise or company to mark a distinction between their products and the rest of the existing products in the trading realm. In the layman terminology a trademark is often referred to as a brand name.
The laws governing trademarks and its registration in India are The Trade Marks Act, 1999, and Trade Marks Rules, 2002. The history of trademark registrations dates back to the 1940s in India. The first trademark law was enforced, however owing to its inefficient provisions and lack of use it was repealed and replaced by Trade and Merchandise Act, 1958.
Further, India became a signatory to the TRIPS Agreement in 1994. It is an international agreement laying down the basic guidelines and standards. It is regarded to the regulation of Intellectual Property in the global context. This further encourag various amendments in the existing laws of the country. It is to comply with the international standards of Intellectual Property Laws. These amendments replace the former act. Basicallly with the Trade Marks Act, 1999, and the Trade Marks Rules, 2002.
These trademark acts have been constantly evolve to suit the needs of the emerging economic and political trends. The introduction of Artificial Intelligence to the world and its increasing use in the social and politico-economic sense makes it eminent to study the implications of it in the legal domains as well. The use of AI has already establish a new era of technology. And also evolvement in the laws of Intellectual Property in the global context,
Hence, through this article the author aims to delve deeper into analyzing the role and scope of Artificial Intelligence. Basically in the registration of trademarks in India.
Legal implications of the use of Artificial Intelligence in Trademark Registration and Searches
Artificial Intelligence is a theoretical and practical development of employing computer systems. It is to form tasks which conventionally required human intelligence and brain. This happen by manifesting them sufficient programming and codes to deliver the services. Same efficiently as a human would in the general course of nature.
Trademark Law essentially still works on the age-old principles and concepts of trade. Also how products are purchase in the market. However, with the advancement of Artificial Intelligence; the market is making a serial shift from reactive to predictive forms of sale. And purchase and creating a whole new platform for businesses. This may lead to invalidation and redundancy of many trademark law provisions in the forthcoming times. The laws will have to be amend to adopt the new ways of purchasing a product, through flexibility.
The author shall further evaluate the possibilities of practical implications that AI may have on Trademark registrations. The ever- increasing use of microphones on various gadgets for voice search and purchasing reflects the stark increase in the importance of phonetics used in trademark particulars. The consumers would be bestowed with more responsibility than ever. It is to ensure that they are making the right searches in context to their demands. The world might witness a shift in liability to AI and a new legal construct. So that there is test infringement by consciously analyzing who is the purchaser in the entire process of trade.
Nestle Head’s view
Sébastien Szczepaniak, the sales head of Nestle in an article[1] also observed that that in five years due to a starting rise in the use of AI assistants, up to 50% of the searches for various commodity would be done by voice. In the majority of the countries the oral use of trademarks is consider to be a legitimate use of the trademark.
The AI also would pay an active role and influence the trademark enforcement in the process of registration. Also taking into account the increasing number of Trademark registrations applications in India. The experts believe that to lessen the burden on humans and decrease the probability of errors of the human mind; the AI should take over the charge of image searches and registrations. Owing to the improper and inefficient trademark offices in India, it is believe that it is harmful to leave the process to the human scrutiny and analysis solely. The AI-based trademark search is actively encourage. And WIPO has successfully even introduce a robust system of AI monitore Image searches using the concept strategy. It enable them to search similar figurative symbols or indicators across all IPO offices.
Average consumer doctrine:
In cases of the likelihood of confusion between similar trademarks during the registration process, the Courts usually adhere with the principle of the average consumer. It describes the average consumer as “reasonably observant and reasonably well informe and circumspect´
Similar marks of products and services in the market and violations of trademarks are assess and view through the lens of the average consumer doctrine. Hence it plays a critical role in the trademark law. This concept becomes important for trademark registration and assessing allegations for trademark infringement.
Through the onset of AI where the devices are more capable than humans and void of human fallacies. All such doctrines governing the process of trade shall be redefine.
Legal Adaptations necessary in the Trademark Law
The inculcation of AI in the process of Trademark registration, would even further the process of eliminating various legal maxims and doctrines such as ‘imperfect recollection’, ‘likelihood of confusion’, ‘secondary infringement’ and ‘the average consumer’, and so on as they are incorporate in the first place to accommodate human error. The AI is beyond average intelligence and has perfect recollection of data, hence the question of the scope of applicability of such doctrines arises in today’s scenario.
The scope of liability of secondary infringement on the companies and online retailers using AI has to be decided. For instance, in the case where the customer or purchaser requests AI devices to make a purchase online, and the device ends up sending an infringed or counterfeit product, the liability would shift to whom, is the primary question that the law should address. Whether along with the product manufacturer it would be the retail company that shall be held liable or the agency that manufactured AI devices.
To date there has been only one landmark case[2] in the context of the Trademark Law, under which Amazon was not held liable for infringing Lush’s trademark when an advertisement highlighted on the Amazon product suggestion system failed to display the company’s trademark. Since this is an operation carry out by artificial intelligence, Amazon got absolve of liability of infringement.
Conclusion
In light of the aforementioned discussion the author would like to point out the emerging need to amend the Trademark Law, by taking Anti-counterfeiting initiatives, availability of quality products, and discouraging monopoly. It is very much possible that as per the predictions the some of the historic principles and concept will get redundant and might not apply to the emerging trading trends at all, unless they are interpret in a more inclusive and holistic sense by the legislators. The IPR world is facing a revolution at the behest of Artificial Intelligence and it is of utmost importance to recognize its growing use and capability to remove ambiguity, provide clarity on the burden of liability, and further scope of implementing the law in various domains.
[1] Saabira Chaudhuri and Sharon Terlep, The Wall Street Journal, February 2018
[2] Cosmetic Warriors and Lush v Amazon.co.uk and Amazon EU ([2014] EWHC 181 (Ch))
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