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AI does not signal the death of trademarks, IP lawyers say

29 May 2023

AI does not signal the death of trademarks, IP lawyers say

Speakers at one of the sessions held during the 2023 INTA Annual Meeting Live+ from May 16 to 20, 2023, in Singapore said they believe AI will not be the death of trademarks. The session was titled “Welcome to the Future: Emerging IP Issues Relating to AI and Its Impact on Brands” and held at the Sands Expo and Convention Centre on May 19, 2023.

Among the topics discussed were the ethical issues and risks associated with AI in the context of trademarks. Note that aside from its ability to create artwork, write articles, stories, and advertising copy and many other functions, AI can also recommend products to consumers making purchasing decisions based on the vast amount of data available.

An underlying risk is the capacity of algorithms to detect and exploit built-in biases and the possibility of an AI system favouring one brand over the other in its recommendation. This particular capability of AI may, in the future, relegate trademarks to a corner in the vast room of consumer consciousness – a place of less importance.

Yet Itai Sela Saldinger, director of IP at Playtika in Israel, said during the discussion that he does not agree that AI will be the death of trademarks.

“As brand owners, we still need to distinguish ourselves from the competitors or any other service. At the end of the day, we are our own brand,” he said. “We have our own logo and name, and the way we design our products – so it’s not only trademarks. Everything hopefully is going to stay more or less the same. But we would have to see, maybe, a little bit more rules, adjusting to the situation.”

Auma Reggy, managing lead counsel at McKesson Corporation in the U.S., agrees it won’t be the death of trademarks.

“We’re just going to have to be more agile and adaptive. One thing I would love to highlight is that I think we’re going to have to become much more digitally savvy, sort of more adaptive from a digital mindset. I’ve heard people say, ‘AI is not going to take our jobs.’ But what is going to take your jobs is if you don’t have this digital mindset and somebody else does,” she said. “That may be what replaces you.”

She cited the 30% Rule, which states that one should allocate at least 30 percent of his gross monthly income to housing costs.

“Like, if you’re a non-English speaker and you go to an English-speaking country, all you need to know is about 30 percent of the language to get by. It’s the same thing with AI technology and all of these kinds of things we’re talking about,” explained Reggy. “At the very least, all of us in this room should have the bare 30 percent of efficiency and understanding, because if not, we’re going to be replaced, if not by AI, by those people who have that digital mindset.”

“AI is substantially changing brand preferences, marketing strategies and consumer attitudes, so there’s a challenge for brand owners to stay relevant for their consumers,” added Ellen Gevers, managing partner at Knijff Trademark Attorneys in Amsterdam.

Seiro Hatano, a partner at TMI Associates in Tokyo, also believes AI will not lead to the death of trademarks. However, he is more concerned about AI’s effect on enforcement. It may bring the death of enforcement work, as AI is very useful in that area regardless of how “the market of the counterfeit will be such a huge market.”

During the discussion, Kate McMorrow, a senior associate at Knobbe Martens in the U.S., served as moderator.





 - Espie Angelica A. de Leon

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