How AI Will Impact Trademarks
How to Stay Ahead of What Is Already Happening
In the case of AI, getting on top of what has already raced ahead needs to be the goal of all IP stakeholders, as James Nurton discovers.
Artificial intelligence (AI) presents “a new frontier” for brand owners and “there will be many, many issues that will arise,” according to Kate McMorrow, Senior Associate, Knobbe Martens (USA), who is moderating today’s session, Welcome to the Future: Emerging IP Issues Relating to AI and Its Impact on Brands (10:15 am - 11:15 am).
Part of the IP and Innovation educational track, this session will offer perspectives from both in-house and private practice from Europe, Israel, Japan, and the United States. The speakers will discuss issues relating to trademark protection and enforcement, as well as how AI is being used in eCommerce and the likely impact it will have on consumers, especially in industries such as gaming and healthcare.
For example, explains Ms. McMorrow, the speakers will look at the implications of voice-assisted shopping and improved visual searching on topics such as trademark selection and the likelihood of confusion analysis. “How are marketing teams using AI? What advice are they giving and what do they need?” she asks.
“AI is substantially changing brand preferences, marketing strategies, and customer attitude.”
- Ellen Gevers | Knijff (Netherlands)
Regulating AI
Emerging intellectual property (IP) issues include the use of AI influencers and how they should be regulated, the liability of providers of AI-driven services, and whether the existing law on keywords is relevant, as well as the IP issues arising from personalized advertisements. Governments are already stepping up their efforts to regulate AI, with the European Union (EU) currently discussing an AI Act and the U.S. Administration announcing new actions to promote responsible AI innovation, making clear IP practitioners need to monitor legislative developments.
“Unlike other big tech developments of the past, at the rate that AI is developing, IP must be there every step of the way, whether it’s IP, privacy, ethics, or any other regulation,” says Itai Sela Saldinger, Director of IP, Playtika (Israel), one of today’s speakers.
Another speaker, Ellen Gevers, Managing Partner, Knijff (Netherlands) adds: “AI is substantially changing brand preferences, marketing strategies, and customer attitude. The development of AI technology comes with fantastic opportunities and great risks for brand owners and consumers.” She highlights the impact of AI on the brand as an identifier and the risk of AI being used to manipulate consumers and distort competition.
“Why can a picture taken by a three-year old on his/her parents’ cell phone be protected by copyright but an artist’s creation with a generative AI tool cannot? This will have to change and soon. Otherwise, we will eliminate copyright.”
- Itai Sela Saldinger | Playtika (Israel)
Answers Awaited
Much of the debate around AI so far has focused on its role in innovation and creation, and what impact this could have on ownership of IP rights. As Mr. Saldinger points out, artists are already using AI tools to create or enhance art in many forms: “Regulators and lawmakers cannot simply reject that fact and will have to accommodate the new way that humanity’s creativity is evolving. Why can a picture taken by a three-year old on his/her parents’ cellphone be protected by copyright but an artist’s creation with a generative AI tool cannot? This will have to change and soon. Otherwise, we will eliminate copyright.”
Some of these issues are raised in pending cases brought by Getty Images and others against Stability AI, a company that uses AI to generate images. Getty claims that Stability has copied millions of its photos to train its AI tool, and also alleges copyright and trademark infringement in the resulting images (some of which appear to incorporate Getty’s watermark). The cases are pending before courts in Delaware in the U.S. and London in the UK.
While it may take months or years for the courts to resolve these questions, Ms. Gevers says trademark practitioners need to be thinking about the impact of AI right now. In particular, they must factor in AI when searching, clearing, registering, and enforcing trademarks across all sectors and fields of activity: “AI is not something in the future. AI is here and its influence will only grow, even in fields that we cannot even imagine yet. Considering the impact of AI is therefore relevant for all products and trademarks and not only for (your clients in) the tech- or data-based industry.”
This is particularly so given that trademarks being filed today will be registered for 10 years. She adds: “In the searching, clearing, registration, and enforcement of marks, practitioners need to factor in the impact that AI will have in the years to come. Even good practitioners, however, cannot predict the future. At minimum, they would need to be up to date with their clients’ people in charge of innovation. Considering the speed of developments in the use of AI, this requires a more constant dialogue.”
If you want to ensure you are up to speed with AI developments, and gain a better insight into clients’ priorities, join today’s session to find out more. “There’s a lot of misunderstanding around AI in the trademark space,” says Ms. McMorrow, who adds: “We want to broaden the discussion so businesses can get ahead.”
