Balanced use of AI in Trademark with Ethical Considerations

Introduction

Intellectual property rights (IPR) are those right are claimed by the creator of that property which is created by using the intellect or mind. Examples of such intellectual creation are copyrights, trademark, patent, designs etc. Trademark is a mark used to identify the goods and services of one entity with another entity’s goods and services. As per section 2(1)(m) of Trademark Act 1999, such mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof^[1].

The term "artificial intelligence" (AI) refers to a computerized system or automation that possesses human-like artistic qualities and individual intellects, such as the capacity to discover, solve problems, and draw inferences. AI systems are programmed to process information, identify trends, and make decisions much more quickly than humans could in certain subjects.

AI used in trademark for the functions like buying and selling of  goods and products, generating new and unique brand names, logos, slogans etc, helps in detecting potential trademark infringements, registration process etc. For example “Alexa” an AI not only interacts with humans but has the capability to automatically order the products based on the market trends and brand information^[2]. The below description is focusing on use of AI in trademark and IPR regime and its effects on the trademark creation and registration and other incidental process pertaining to trademark. The discussion also suggests some solutions to the concur the challenges created by the Artificial intelligence.

AI and Intellectual Property Rights (IPR)

An individual's or an organization's ideas or original creations are protected by intellectual property rights (IPR). Trade secrets, trademarks, patents, and copyrights are all essential to the protection of incentivizing inventions. Technological advancement is altering the relationship between IPR and new technologies, with artificial intelligence (AI) serving as an example of a link that has become more prominent in recent years.

The intellectual property market is changing as a result of the rapid advancement of artificial intelligence (AI) and a series of disruptive innovations that are impacting numerous industry landscapes.

Revolutions in Trademark

During the last decades there are no drastic changes or disruptions in brand suggestions and product purchasing process which remained almost static, the trademark law functioned properly but the emergence of disruptive technologies like Artificial Intelligence, Internet of Things (IoT), Block chain, Data Analytics etc are sure to impact the conventional law^[3]. Trademark law was successful in passing of three revolutions but the question remained about the AI, the fourth revolution^[4].

Online trading prominently known as E-commerce is the second revolution and this happened due to innovation and emergence of World Wide Web (WWW)^[5]. Not only trademark law benefitted from the world wide web but also faced threats from the novel aspects of Google and other search engines^[6]. Majorly the law has to deal with complexities of the keyword advertising and other issues include domain names, meta tags, and doctrine of initial interest confusion^[7].

“Social networking´ is a buzz word among the millennials and the Gen Zers. Public are spending more time on various social networks like Facebook, Twitter, WhatsApp, Instagram and other like platforms and this networking has changed drastically the way the brands are suggested, promoted, encouraged and purchased. Trademark law has to face certain new issues due to phenomenal shift in product purchasing process created by the social media^[8].

AI and Trade Mark

AI and the Trademark Brand names act as unmistakable identifiers for labour and products, permitting buyers to relate a specific brand or item with its source.

AI algorithms can help with the registration of trademarks, carry out in-depth trademark searches, and keep track of how trademarks are used across a variety of platforms, including social media and the internet, thanks to the rapid advancements in AI. This can help organizations proactively distinguish expected encroachments and make a convenient move to safeguard their image. Tools powered by AI have the potential to make trademark management simpler and trademark protection more effective.

The incorporation of AI into the process of creating trademarks represents a significant shift in the traditional understanding of authorship and ownership.

The fact that AI systems can independently generate, modify, and use trademarks raises questions regarding the validity of such AI-generated trademarks and the potential for their misuse.

Judicial Precedent

“Till date, there is only one proper case regarding the interaction between AI and trademarks. In the case of Lush V Amazon, the court has reprimanded the Amazon for infringing upon the Lush trademarks. Amazon brought the keyword “Lush” from the google through bidding process. And when the word “Lush” is searched on the google search engine, google redirects the link of the amazon website based on the key word. Even if the “Lush” word is searched on the Amazon’s website, the AI of the website is suggesting the similar products rather the “Lush” products. Though there are no sale of Lush’s products on the website but AI product system is suggesting the similar products based on the keyword search on the website which is clear indication of infringement. And court held that Amazon is liable for the infringement.”^[9]

Regulatory and Ethical Considerations

As computer based intelligence frameworks become progressively refined in producing unique imaginative results, the customary idea of origin and possession for brand names is being tested. The question of who, the AI system developer, the trademark applicant, or the end-user, should be recognized as the rightful owner of such marks arises as a result of the incorporation of AI into the trademark creation process.

Additionally, it can be challenging to evaluate the distinctiveness and originality of AI-generated trademarks using the existing evaluation criteria. It may be difficult to determine whether these marks truly meet the uniqueness requirements for trademark protection because they may consist of intricate combinations of existing elements.

The possibility of consumer deception and confusion is yet another significant cause for concern. Simulated intelligence created brand names could intently look like existing enrolled marks, prompting the gamble of purchasers being deluded about the source or nature of the labour and products related with the brand name. The High Court ruled in the landmark Cosmetic Warriors Ltd. v. Amazon.co.uk Ltd. (2014) that Amazon infringed the LUSH trade mark by using the term "Lush" in its Google sponsored advertisements and in its search facility on the Amazon website even though it did not actually sell LUSH products.

Adherence to the Legal Framework

To address these difficulties, India's policymakers and IP specialists should embrace a thorough survey of the brand name enlistment process and foster customized lawful and administrative structures to oblige simulated intelligence produced brand names.

Introducing a distinct application category for AI-generated trademarks, distinct from the current procedure for human-created marks, is one potential strategy. This would make it possible to develop specialized examination methods and evaluation criteria that take into account the particular characteristics of AI-generated works.

AI-generated trademark applicants should be required to disclose the use of AI technology and provide in-depth details about the AI system used, such as the training data, algorithms, and level of human involvement. The evaluation of the mark's validity and ownership will be made easier with this transparency.

Moreover, the reconciliation of artificial intelligence based devices and calculations into the brand name assessment cycle can help human analysts in distinguishing similitudes, recognizing likely encroachment, and hailing any tricky or deceiving components.

To ensure that these new types of trademarks are evaluated appropriately, it will also be essential to appoint trademark examiners with specialized expertise in AI and machine learning.

Another important aspect is establishing precise guidelines regarding liability and accountability for AI-generated trademarks. In cases of infringement, misuse, or harm caused by these marks, policymakers must address the complex issue of attributing responsibility to the relevant parties, such as the trademark applicant, trademark user, or AI system developer.

Coordinated effort between the brand name office, IP specialists, and AI-technology controllers will be fundamental in creating complete rules and best practices for the reconciliation of simulated intelligence in the brand name enlistment process. When using AI to create and register trademarks, this cross-disciplinary approach will assist in addressing the emerging ethical issues of bias, fairness, and transparency.

Future Outlook

Future Prospects India's legal and regulatory frameworks must be flexible and ready for the future as it navigates the changing landscape of AI-generated trademarks. In order to ensure that intellectual property laws and trademark registration procedures remain relevant and effective in the face of these transformative changes, policymakers must create adaptable frameworks that can accommodate the rapid advancements in AI technology.

India can position itself as a global IP leader by proactively addressing the legal and regulatory challenges posed by AI-generated trademarks, fostering innovation while maintaining the trademark registration system's integrity and trust.

Conclusion of future outlook:

As a result, India must rethink its legal frameworks and redefine them in the face of AI's radicalization of trademark generation so that innovation can coexist with the same ethical concern. For AI-Generated Trademarks, ownership, uniqueness evaluation, consumer protection, and liability attribution must be defined. Policymakers, IP specialists and artificial intelligence controllers should cooperate to present clear guidelines that thus ensure the straightforwardness of all gatherings associated regarding brand name enlistment. Through these difficulties, India can at the boondocks of making a thorough and moral IP environment that won't just permit financial development yet additionally produce human qualities.

Conclusion

In conclusion, cautious ethical considerations must limit the implementation of artificial intelligence in trademark law, even though it offers efficiency and accuracy. Maintaining fairness, openness, and respect for privacy in trademark procedures requires striking a balance between technical advancements and human control. Stakeholders can maximize the promise of AI by making sure that branding systems continue to be equitable and reliable for all parties involved while keeping these ethical landscapes in mind. In addition to protecting intellectual property rights, this strategy fortifies the moral basis that supports our legal system in the digital age.