While the theory around artificial intelligence generates a lot of interest, particularly for trademark specialists, it's time to assess the potential practical impact on the law, say Lee Curtis and Rachel Platts of HGF.
When you ask Alexa, Amazon's artificial intelligence (AI) assistant, how 'she' works, she says: "Lots of people have worked hard to teach me, and I am still learning more." She does not deviate from that response, and although Alexa does not give much away, the way in which Alexa – and indeed all AI assistants – works will have a practical impact on how trademark law will work in the future.
In our previous Managing IP article on the topic of AI and trademarks (in December 2017), we raised – probably for the first time in print – the possible impact AI may have on some of the core concepts of trademark law. Notably, how will AI impact the fundamental and accepted concepts of trademark law such as 'average consumer', 'imperfect recollection', 'likelihood of confusion', 'concepts of aural, conceptual and visual comparison' and the 'slurring' of trademarks? The ultimate question was, 'can AI be confused?'
As we explored previously, trademark law today is still fundamentally based on nineteenth century concepts of how products are purchased, but when AI is involved it means that the purchasing of products and services moves from a reactive to predictive mode. As such, many of the current concepts of trademark law may simply not be relevant anymore and the law will have to adapt, as to a degree it has always done, to be flexible to the new ways products are purchased.
ARTIFICIAL INTELLIGENCE TRADEMARKS
The impact of artificial intelligence (AI) on trademark law is as yet, untested, but here the authors provide a practical insight into some of the possibilities of the effect in practice that this technology could create. With the rise of voice searching and purchasing, there will be an increased importance on the phonetic aspects of trademarks, and the responsibility of accurate searching could be pushed back to the consumer. The authors suggest that we will see a shift in the law regarding the liability of AI and a new legal test for infringement as we see a need to identify who (or what) is making the purchasing decision.
Enough about the theory, what about the practical implications?
However, what will be the practical implications on the average trademark attorney or trademark lawyer of this 'AI revolution'? After all, trademark law fundamentally concerns itself with the way products and services are purchased and the relationship between the consumer and brands. Trademark law is a very 'practical' aspect of the law.
Sébastien Szczepaniak, head of sales and e-business at Nestlé, in an article in The Wall Street Journal (written by Saabira Chaudhuri and Sharon Terlep, February 2018) predicted that within five years, as a direct result of the rising use of AI assistants in retail, 50% of searches for products will be done by voice. This will no doubt only increase over time as the popularity of AI assistants rises. Of course, in the UK and the EU, as in the majority of countries of the world, the oral use of trademarks is considered trademark use. Therefore, by definition, use of voice searching for brands is trademark use.
Practical implications of 'voice' searching rise
When comparing trademarks, we are all familiar with the analytical framework for comparing trademarks, i.e. their phonetic, visual and conceptual impact. Historically the importance of one form of comparison over others has waxed and waned, and with the shift to voice ordering, the phonetic comparison is expected to take centre stage.
By definition when the majority of product or service searching is conducted by the voice, the visual impact and visual cues of branding will be reduced, if not eliminated, in the process. Further, at present the majority of online shopping is conducted via typing on a keyboard or mobile phone and browsing through search engines such as Google or via online shopping websites or marketplaces. However, the rise of voice searching means that in the 'trinity' of trademark comparison, at least with regards to the voice purchasing of products, phonetics will rise in importance, followed by the conceptual impact of the brand, with the ultimate relegation of the visual impact of a trademark.
We also contend that such a dominance on the phonetics of a trademark will lead to fewer instances of typo-squatting or domain name squatting, as fewer people will be relying on having to actually type the brand name into a search engine. Gradually, the parties behind such squatting may cease to bother registering similar domains, as it will not be worthwhile pursuing, or at least the attractiveness of this form of infringing activity will fall. Typo-squatting will reduce as consumers move away from typing all together – it is not just shopping where people are using their voice, as technology in general is moving towards voice command (think Siri, Google Assistant and Cortana). As such, attorneys and lawyers are likely to see a reduction in the number of domain name actions crossing their desks.
Coupled with this, the nature of search engine optimisation as we currently know it will change with the rise of voice search. These changes are not unprecedented and neither is their impact on the practicalities of trademark law. In the early days of the rise of online shopping, there was a spate of cases concerning the use of metadata and metatags and trademark infringement claims, the most notable in the UK dating from 2004 between Reed Executive and Reed Business Information. This form of trademark infringement is now almost unheard of, as the importance of the use of metadata in search optimisation has fallen, particularly on Google. No doubt with the rise of voice search, new forms of optimisation will develop and with that new forms of trademark infringement. Indeed optimisers are already attempting to determine how Amazon ranks listings in Alexa, with popularity (sales), rating, reviews, price, delivery speed reportedly having an impact. Further, as online searching is commanded by voice, how will consumers see sponsored content?
AI assistants introduce some new issues to the phonetic comparison of trademarks. By definition, AI assistants are based on voice recognition software. How a particular consumer pronounces a brand and how the AI assistant interprets this may introduce another factor into the product purchasing process. It could also mean that such AI assistants may have to reconfirm brand name suggestions by the consumer. It has been recently reported in the press that Amazon employees do 'sample' certain recorded conversations between consumers and Alexa, subject to privacy protection controls, to improve the accuracy of its voice recognition software and leads to Alexa learning how individual consumers pronounce words and what they mean. By definition this will equally apply to the pronunciation of brand names.
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Previously published in Managing Intellectual Property Magazine – May/June 2019
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