WHAT IS AI (ARTIFICIAL INTELLIGENCE)?

In this digital era where technology thrives over traditional lifestyle, we often hear the term AI (Artificial Intelligence). Now we may have different notions or we may know different meaning to this terminology, and this is so because the definition has never been stagnant for the layman or has never been simpler.

Hence, for the sake of brevity, a simple definition of AI as per Merriam Webster is as follows: “the capability of a machine to imitate intelligent human behaviour”.[1]

Nowadays AI is the fuel that every big corporate or tech-savvy company requires in order to run their business operations. Companies such as IBM, Google, Facebook, Netflix, Amazon etc. are all integrating AI systems into their basic business structure. Besides these companies, there are even big and small online retailers and online product manufacturers/sellers who have rightly integrated AI into their computer systems so as to better serve their clientele and customer base, improve logistics and to extend their business reach.

HOW AI IS AFFECTING THE TRADEMARK LAW?

Trademark is an associated brand image of a particular product that is earned through good quality and reputation of that product. The customers are always drawn towards such products which are established in the market and hence this was primarily the traditional way of shopping. But with advent of technology and digital advancements, this traditional way saw certain enormous changes. One of these changes is the fact that now the customers are served with their choice of products online only, either on their social media feeds or through online advertisement campaigns. This has become possible due to the recent application of AI technology by these online retailers.

All these business giants/ online retailers are actually analysing and preparing a pattern of their customer choices based on their customer’s search and browser history, selections and final orders on their buying profiles. This is how these online portals are applying AI technology into their systems that is able to show and recommend products that are similar to the customer choices, thereby immeasurably impacting the buying capacity and decisiveness of these customers.  

Although the use of AI applications by consumers is still relatively limited, mist consumers will have used some form of AI application, such as the product recommendation system appearing on Amazon.com and other online retail platforms. In this context, the AI application effectively acts as a filter between the consumer, the product and the past purchasing decisions.[2]

The main purpose of the Trademark is to serve and recommend the customers with quality products. Currently, we are seeing a surge of products like Amazon Echo, Google Home, and Apple Home Pod that provide AI assistance to humans. Consider a scenario where such an AI assistant is asked by a person to buy a product based upon the predetermined standards for buying that product such as quality and quantity. Such ‘Amazon Echo’, ‘Apple Home Pod’, or ‘Google Home’ orders a counterfeit/infringing product, would then Amazon or Google be liable for secondary infringement along with the infringing product manufacturer.

Same issues will have to be considered in case of another emerging revolutionary technology called the Amazon Dash Replenishment Service (DRS) which enables connected devices to order physical goods automatically from Amazon when supplies are running low.

The customer selects the products they want to automatically reorder and the device supporting DRS measures and tracks usage and when the supplies are running low, places an order using DRS, and Amazon then ships the product to the customer. In future such service may have the discretion to choose the product as well.[3]

Trademark usually outlines the relationship and interaction between the customer and the brand/product. There are certain basic tenets of the same that are crucial for any customer to choose a product of his/her choice, these canons are “likelihood of confusion”, “imperfect recollection”, aural and visible impact and comparison of trademarks, etc. But with the surge of AI application, these basic tenets shall soon be disappeared as now the customers are provided with very limited product/brand choice.

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GLOBAL LANDMARK CASE LAWS

• Louis Vuitton Vs Google France[4]

This is a landmark case for “keyword advertising”. In this case the dispute arose between Google France and Louis Vuitton, the famous luxury bag producer. Louis Vuitton which enjoys a global reputation of producing luxury bags high-quality alleged that Google through its online search engine called "AdWords" is displaying ads ultimately infringing the trademark of LV. main reason behind this is keyword advertising wherein anyone reserve a certain keyword from that keyword the online search engine of Google shall display ads or sponsored links. In this case there were sofa combinations such as imitation or copy of LV which seem to be an infringement of LV's Trademark and their reputation.

The French Court found that the Google was by all means guilty but the second appeal changed the entire scenario by stating that if the trademark usage or keyword usage is not causing any detrimental effect to any of the functions of the trademark owner i.e. LV then there shall be no case of trademark infringement. This determination shall defend from case to case enhance the ruling came down in favour of Google. The most important aspect about this entire dispute was how EU emphasized upon intermediary liability of these service providers and keyword advertisers.

• Cosmetic Warriors Ltd. & Lush Ltd. Vs Amazon.co.uk ltd.[5]

In this case the similar situation of what happened in the LV versus Google France case happened. The claimant alleged that Amazon is infringing their Trademark by negotiating a deal with Google AdWords service. Through this deal and with the incorporation of AI system, Amazon made it possible that whenever a customer searches for products under the brand name Lush on the Google AdWords service then that would directly show that the same products are available on Amazon, but in actual the same products are not available on Amazon.

So this means if the consumer directly goes to Amazon and search for the same products, instead of showing there are no products available, they will show similar products. This is clearly an example of “misleading advertising”.

Hence United Kingdom High Court found that Amazon is liable for the infringement of the trademark of lush products and it also mislead the consumers that it sells Lush products, but in actual it does not.

BY- SRISHTI AGARWAL