Alexa... buy me a Hoover
The copyright issues of AI have been discussed by a number of people. There has been a particular focus on the issue of who owns the copyright in AI-generated works, specifically works where there is no human input at all. As AI is not a legal person, this might present real problems.
The article that has interested me most is one entitled “AI is coming and it will change trade mark” law by Lee Curtis and Rachel Platts, published by Managing IP. This article discusses the inherent conflicts between trade mark law and AI. To understand this conflict, we need to go back to basics.
To this day, a trade mark is described as a “badge of origin” or, sometimes, a “badge of control”. What this means is this: although a trade mark may not necessarily tell the consumer which company manufactured the product, it does tell the consumer that all goods featuring that trade mark were made by the same company, and will therefore be of a consistent quality. It allows the consumer to again buy a product that they have previously been satisfied with, and avoid buying a product that they have previously been dissatisfied with.
So, trade marks and trade mark law are all about human interaction with brands. Just think of the concepts that form the basis of trade mark law: distinctiveness, reputation, confusing similarity (visual, phonetic, conceptual), imperfect recollection, and consumer propensity to concentrate of the first element of a trade mark rather than what follows.
This human interaction has always been there. Right from the days when shopkeepers guided us on purchasing decisions, to self-service shops, to online retailing and social media prompting. But AI is a game-changer because it’s predictive and it takes the human out of the purchasing process.
So, just what does AI look like in this context? The authors tell us that we’re moving from an age of “shopping then shipping” to an age of “shipping then shopping”. In other words, one where AI orders goods for us, the goods arrive, and we then decide whether or not we want to keep them. Some examples of AI include:
So, retail will therefore stop being reactive, but many questions remain. Will AI consider branding at all or simply issues like price and style? Will the AI models allow for returns in the case of confusion? What place will there be in trade mark law for all those concepts of confusion (visual, aural and conceptual), blurring, dilution, the average consumer? Does AI become the average consumer? Does AI have imperfect recollection? Can AI be confused?
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