A Call for Views: “Can AI and IP policies work harmoniously”, asks the UKIPO

Posted on: October 13th, 2020

In September 2020 the UKIPO launched a “Call for Views” in an attempt to establish public and industry professional opinion on whether Artificial Intelligence (AI) and Intellectual Property (IP) can work side by side. The aim is to identify any implications AI may have on IP policy and vice versa.

The “Call for Views” has been structured in 5 sections: patents, copyright, designs, trademarks and trade secrets. These raise some thought provoking questions, such as:-

  • how IP generated by an AI should be protected
  • whether content generated by AI should be eligible for copyright protection
  • if the concept of “the person skilled in the art” can be extended to “the machine trained in the art”
  • whether there are, or could be, any difficulties with applying the existing legal concepts in trademark law to AI technology
  • if AI would affect the consent of the “average consumer” when measuring the likelihood of confusion

The UKIPO have suggested that they are committed to a digital transformation programme as part of their Corporate Plan for 2019-20 – making the UK a global centre for AI and data-driven innovation. The IPO have recognised as part of this call that AI is “transforming the global economy and already an integral part of our lives.” An understanding of whether AI and IP can work together is likely to contribute to the IPO establishing AI related services to provide in the future – which is positive particularly in a time where technology (including AI) is prevalent in many aspects of our lives, impacting the workplace, homes, transportation and healthcare.

AI and Trademarks

What are the potential implications between AI and trademarks?

It is more important than ever for brands to be distinctive in today’s highly competitive markets, utilising protections such as a trademark to help maximise a brands recognition and goodwill. Unfortunately, with any brand, whether established or up and coming, there is always the risk of someone else trying to utilise and benefit from the recognition another brand may have already established – having a registered mark helps prevent unauthorised use and reduces infringement.

The connection between AI and trademarks boils down to whether AI could lead to trademark infringement, particularly where the current concepts of trademark infringement are founded on human interaction with branding. The current legal position for trademark infringement requires a “person” to be infringing, which we consider implies a legal person and excludes AI technology.

AI has advanced significantly over the years leading to suggestions that the law in this area has fallen behind the technological advancements. The “Call for Views” looks to address these shortfalls by raising questions surrounding the current trademark law, how this would apply to AI technology and infringement by AI systems.

The concept of the “average consumer” is based on whether the proposed mark causes the likelihood of confusion. The difficulties existing trademark law currently contends with is the ability for AI to identify identical or similar marks and the likelihood of causing confusion. The average consumer is considered to be reasonably well-informed, observant and conscious of any potential risks – AI places trust in technology with little to no human interaction.

The outcome of the “Call for Views” questioning will be informative and, by opening the questioning to the public, is likely to raise proposals for change that are unlikely to have been considered before. Technology is advancing at a rapid rate and it is vital for the law to keep pace. Watch this space for a further updates once the consultation period has closed.

If you are interested in providing your views you have until 11:45pm on 30 November 2020 to do so and responses should be sent by email to AIcallforviews@ipo.gov.uk. A link to the consultation page is here.

If you have any questions about the registration and protection of intellectual property rights or any other AI/IP queries, please do get in touch with the Dispute Resolution Team at Coffin Mew.

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