Trademarked Goods in the Midst of Digital Shopping

A person is holding on to his phone, scanning through social media, when suddenly an advertisement for an item he only mentioned in passing greets his eyes. He is suddenly invigorated to purchase the object. Soon, various related items are also shown to the consumer – items that he never thought he needed, but now he thinks he does. It’s as if the platform is continuously giving him signs to buy these items. It is no longer branded names that are advertised to the consumer, but a mixture of both trademarked goods and generic goods offered in different platforms. 

 

Trademark and artificial intelligence have a direct correlation to one another, but not necessarily in a positive manner. The development of one may eventually lead to the demise of the other. Given this, how can trademarks holders adjust to these technological changes?

 

 

Artificial Intelligence of Digital Shoppers

With the ever-increasing development of artificial intelligence such as digital shoppers, the role of trademarks in society may begin to weaken. We can fully outsource our decisions on consumption to these AIs because they are developing in such a way that they know our preferences better than we do. In these changes to online technology, today’s trademark doctrine is becoming obsolete in the sense that AI is able to look past the simple marks that trademarks create. A paper published by the Kentucky Law Journal titled “AI and the Death of Trademark” posits that sufficiently sophisticated technology will render trademark superfluous in many cases.[1]

 

In today’s technology, retailers are using AI to translate vast volumes of retail big data into actionable insights.[2]  An advanced AI “shopper” gets past the limitations of human capability. Such AI exists to analyze context that trademarks allow us humans to ignore. Artificial intelligence is able to offer a fast way of doing tasks at a far more efficient way than humans can do, such as simplifying data analytics.

 

As a digital shopper, AI can manage a person’s purchasing choices and delegate all tasks related to purchasing – looking for the available products, evaluating the products against one another, and purchasing the products on the person’s behalf. Eventually, using a person’s data analytics, the AI can predict what a person likes and is able to sift through all the available data for the most optimal result.

 

Simplification of Information

 

Trademarks simplify information. Putting a mark into certain products removes the context, and just defines a product via its mark. We humans have limited cognition, which is why we need trademark’s ability to serve as shortcuts for certain objects. Because of limited time we have as well as limited capabilities, we find the need to rely on simple information signals offered by trademarks. These trademarks help buyers identify certain goods and services without having to ask about the context in the marketplace. Because of trademarks, we are able to purchase products quicker because we are limited in the context we need to go through.

 

Trademarks are only one of the many things that AIs consider, in its optimal search through all the available data. A powerful AI can eventually reduce the relevance of trademarks.[3] Because of AIs’ ability to sort through almost limitless context and data, the importance of maintaining stable trademark meanings is lowered. Unlike in the past where we rely on simple information presented by marks, AIs give us immediate access to accurate information at a low cost, without having to be limited to simple affiliation information provided by trademarks.

 

The Correlation of AI and Trademark

 

Because of these unavoidable changes to technology, trademark law must adapt quickly to prevent itself from being obsolete. Trademarks exist in our world today to address marketplace information problems. Once AI develops to help us get past our limited cognition, trademark law must be adjusted to another level. As of now, we can already see how the current trademark domain is under pressure from artificial intelligence in the form of online platforms such as Amazon, or in our case, Shopee or Lazada. These retail AIs influence the way consumers behave and purchase online.

 

Through data gathered from individual customer preferences and purchase, browsing history and items usually bought together, online platforms are able to create personalized listings of products which customers have a tendency to actually prefer or need. These AIs understand the consumer and adjust his or her experience based on the consumer’s behavioral patterns.

 

With these platforms, trademarks and trademark law become de-emphasized. Trademark information is used by the platforms to generate alternative options to the trademarked products. The platforms offer a variety of options available, which do not necessarily pertain to the item which was originally searched for. Trademarks are eventually limited in importance, as consumers begin to prefer using the platform rather than finding the trademarked goods first. Developments in AI reduce the importance of trademarks in the way people purchase goods and services. Markholders have lessened authority because of the multitude of data already available which consumers have the freedom to sort the data in any way they want.

 

In conclusion, trademark holders must be wary of the continuous developments to technology and artificial intelligence. Trademarks become vulnerable to the limitless capabilities of AI which eventually lead to consumers preferring platforms over trademarked goods. Trademarks are in a way de-emphasized due to the capability of AI to compile the data and identify better products, sifting through the context trademarks offer to ignore. To survive these changes, trademark and trademark law must also evolve to avoid its eventual death, as proposed by the Article.

 

[1] Grynberg, Michael, AI and the “Death of Trademark” (2020). 108 Ky. L.J. 199 (2019-2020), Available at SSRN: https://ssrn.com/abstract=3626674

[2] “Artificial Intelligence: Your Personal (Digital) Shopper” (2017). Available at https://medium.com/@life_frida/ai-your-personal-digital-shopper-1af4f31c29aa

[3] Supra at 1.

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