One of the areas where the impact of artificial intelligence (AI) technologies have been intensively discussed is trademark law; while the changes brought about by this technology make attempt to provide innovative and effective processes in terms of registration processes and determination of infringement, it also makes it necessary to re-evaluate the basic concepts of trademark law.
This year, as in previous years, the use of AI technologies by the authorities in relation to trademark registration processes and other administrative procedures continued to increase. As the Index1 published by the World Intellectual Property Office (WIPO) reveals, intellectual property offices around the world use these technologies to increase time/cost efficiency and improve accuracy and internal productivity. WIPO, on the other hand, has integrated many AI assistants such as the "Global Goods & Services Terms Explorer", which helps to identify terms during the determination of the list of goods/services in application processes; "WIPO Translate", which provides translation of technical documents; "WIPO Speech-to-Text", that provides fast and accurate transcription of spoken phrases; and "Global Brand Database", which enables visual similarity searches, into its system to increase efficiency, accuracy and accessibility in its operations.2
Pursuant to the "Communiqué on the Classification of Goods and Services for Trademark Registration Applications" published in the Official Gazette dated 20 December 20243, the Turkish Patent and Trademark Office ("Office") has amended the classification of goods and services used in trademark registration applications to reflect, among other things, the relevant technological developments. In this context, the latest changes made in the Nice Classification system were reflected to the existing lists, new subclasses have been added to class 09, as well as other classes, and goods such as "AI humanoid robots, laboratory robots, robots for educational purposes, robots for security surveillance" have been included. This shows that measures are being taken to increase the integration of relevant technologies into trademark registration and protection processes, taking into account their widespread use.
Another point worth mentioning is the trademark infringement that may occur through the use of these technologies, in which case there is still no certainty as to which party should be held liable, and in what framework; indeed, legal regulation and/or court decisions that would shed light on this issue are yet to be established.
However, we believe that the conclusions in the "Cosmetic Warriors and Lush v Amazon.co.uk and Amazon EU"4 decision may provide clarity on the issue, as it addresses trademark infringement with the use of AI technologies, the level of involvement of AI providers in the relevant purchasing processes and their role in directing consumer preferences as being decisive in determining the liability for possible infringement.
AI technologies seem to necessitate a transformation in terms of the general principles of trademark law. As a matter of fact, with the rise of these technologies, the structure of shopping processes has also changed, and AI assistants, search engines, customer service bots and online marketplaces have started to play an important role in consumers' purchasing preferences.5 In this context, we have started to encounter situations where either the consumer's purchasing preferences are determined according to the results provided by AI, or the direct act of purchasing is performed automatically by AI with or without the voice-triggered instructions of the consumer. In the face of AI's ability to correctly analyse complex data, it becomes necessary to reconsider the concepts such as "average consumer" and "likelihood of confusion", which are developed by taking into account the imperfect perception of human beings.
In this context, although the interaction of AI with trademark law, the scope of protection and infringement of rights will become clearer over time with the court decisions, it is of great importance for trademark owners to closely monitor the process by keeping abreast of the opportunities that this technology can provide while determining their commercial strategies, to organise/develop their trademark registration portfolios to cover their use of related technologies and to take measures to avoid situations that may lead to infringement.
Footnotes
1. https://www.wipo.int/about-ip/en/artificial_intelligence/search.jsp
2. https://www.wipo.int/en/web/ai-tools-services#:~:text=WIPO%20has%20developed%20an%20AI,Patent%20Classification%20(IPC)%20schema.
3. https://www.resmigazete.gov.tr/eskiler/2024/12/20241220-6.htm
4. Cosmetic Warriors and Lush v Amazon.co.uk and Amazon EU [2014] EWHC 181 (Ch)
5. WIPO Conversation on IP and AI, Second Session, Revised Issues Paper on IP Policy and AI, s. 12.
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