Trade marks in AI 2021 – Sarah Neil shares an update on the progress in the UK’s review of artificial intelligence and intellectual property

 

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As we have mentioned in previous articles trade marks in AI are an important part of a strong portfolio in the protection of your AI business. The ever accelerating landscape and growth of AI technology means keeping on top of the changing legislation and law. In this years’ AI report series our team of experts share the updates on the UK’s progress in the development of IP for AI.

 

UK Government response to “Call for views on AI and IP”

The UK Government has published the responses it received to its 2020 “Call for views on AI and IP” and published its analysis and proposed next steps.

The questions relating to trade marks and AI had two themes:

• The potential impact on trade mark law, including the concept of the “average consumer”;
• The potential impact on legislating relating to infringement and liability

The trade mark section of the report is available here. A summary of the responses and the Government’s reply to each theme is below.

 

Trade marks in AI: a summary of responses 

Average consumer

AI systems are already making purchasing suggestions to predict what someone might want to buy. This section asked whether AI systems were likely to affect trade mark law concepts, including the “average consumer”.

The consensus of respondents was that AI is not yet developed enough to have an impact on the legal concept of the average consumer, who is still human and unlikely to change for the foreseeable future. AI is not a consumer in its own right, rather it is a tool helping consumers to make purchasing decisions.

Respondents raised a number of interesting hypothetical points which may become relevant as the use of AI develops and increases over time. For example, the rise in use of voice assistants may lead to phonetic comparison of marks becoming a more important factor in the future.

Infringement and liability

The questions in this section explored if AI actions amount to trade mark infringement. If so, who would be liable and whether the actions of AI could be considered “use in the course of business”.

Respondents agreed that AI systems lack sufficient legal personality and that AI is a tool which can be a possible medium for infringement, but not an infringer.

Some examples of infringing actions were raised which led to various considerations regarding the kind of liability which would exist and who the legal entity responsible for the infringement would be.

The consensus was that legislative changes are not required at this time, but the position should be monitored as AI evolves.

Government response

The Government acknowledges the clear steer from respondents that AI is not yet developed enough to impact core legal concepts of Trade Mark law.  It is also acknowledged that there is currently limited impact on infringement provisions and the role of the courts in exploring such issues on a case by cases basis was recognised. The matter will be kept under review

 

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If you wish to discuss this topic, or another Trade Mark or AI related topic, you can contact the writer, or a member of our AI Team.

Also in this series:
April AI Report 2021 – Copyright
April AI Report 2021 – Designs

Also related to the Governments ‘call for views on AI & IP’:

UK Government ‘call for views on AI & IP’ response – Patents & AI

Call for industry views on AI and IP and ViCo

AI and IP – A report on CIPA’s Computer Technology Committee recommendations on AI and IP

 

 

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Category: Latest Insights | Author: Sarah Neil | Published: April 2021 | Read more