AI and the "Death of Trademark"
40 Pages Posted: 8 Jul 2020
Date Written: 2020
How might improvements in artificial intelligence (AI) technology affect trademark doctrine? This Article approaches the question by imagining trademark law in a world in which we can fully outsource our purchasing decisions to AIs that satisfy our preferences better than we can. Leaving aside whether the technology is possible, this thought experiment tells us something about today’s trademark doctrine and how it is responding to changing online technology and culture.
A sufficiently sophisticated AI would render trademarks superfluous in many situations. Trademarks function by simplifying information. We use them to stand in for a broad range of (sometimes contradictory) data assembled from a variety of sources. Because human cognition is limited, the ability of trademarks to serve as a shortcut is valuable, but it is a second-best solution. With unlimited time or enhanced capacities, we would be better able to find optimal products without relying on the simple information signals offered by trademarks. As it is, sifting through all the available data is not a wise use of our limited attention.
But the hypothetical AI is not similarly limited, and a sufficiently advanced AI “shopper” would exist to analyze the context that trademarks allow us to ignore. The role of trademarks in such a world is more limited—and consequently requires less protection—than what we see today.
Though the hypothetical AI does not, and may never, exist, we can see its forerunners in web platforms like Amazon and Facebook. They are already changing trademark doctrine, and they illustrate why trademarks may be less important in the future. Though these technologies raise any number of troubling questions, they are not the sort that trademark law is well-equipped to address.
Keywords: trademark, intellectual property
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