Trade marks play a vital role in global economic growth by promoting freedom of choice, enabling consumers to make quick and safe purchasing decisions and by driving competition and innovation. Conventional trade marks such as letters, numbers, words, logos and symbols, visually identify the product or service on which they appear. In recent years, with the explosion of new technologies and new avenues of digital marketing including domain names and social media, the use and importance of trade marks has markedly changed.
Over the next decade Google Assistant, Apple’s Siri-enabled HomePod, Samsung Viv, Microsoft Cortana, Tencent Xiaowei and many more AI assisted technologies are poised to take over as the primary channel through which consumers seek out new information, products and services, transforming the way in which brands will connect with their customers. These digital assistants will help customers to navigate a seemingly endless number of choices about the goods and services they purchase by reducing the role of the human in the product selection process. However in reducing the interaction between customers and the brand, this requires the digital assistant to make decisions about trade marks that were previously left to humans. Can AI assistants be confused? Do they have imperfect recollection? What liabilities should a manufacturer or a skill developer have for selection a product that infringes another trade mark?
While relying on a digital assistant to make automated product selections may reduce the decision making burden on customers, the removal of humans from the product suggestion and purchasing process raises a number of issues. For example, will AI consider branding at all when deciding what product to select? How will it select between two similarly sounding brands? Will AI know if it has suggested a counterfeit good?
The arrival of digital assistants will fundamentally alter the relationship between customers and brands - and the law of trade marks or at least its interpretation in the context of new technologies, will need to be revisited.