Trade Mark Infringement and Artificial Intelligence

New Zealand Business Law Quarterly (Forthcoming)

51 Pages Posted: 7 Dec 2021

See all articles by Rob Batty

Rob Batty

University of Auckland - Faculty of Law

Date Written: August 16, 2021

Abstract

Artificial intelligence (AI) technologies are starting to alter the way in which consumers shop for and purchase goods and services. This exploratory article examines some of the implications the increasing use of AI technologies may have to the law of trade mark infringement under New Zealand’s Trade Marks Act 2002. Trade mark infringement is typically predicated on a finding that there would be a likelihood of confusion caused by the defendant’s use of an identical or similar sign to a registered trade mark. Established trade mark doctrine assesses whether confusion is likely by having regard to the perceptions of the hypothetical “average” human consumer, who has deemed human traits and psychological characteristics. The article suggests that as AI becomes more heavily involved in helping consumers shop for and purchase goods and services various discordances with this established trade mark doctrine may develop. After analysing these potential discordances, the article considers how New Zealand trade mark legal doctrine may adapt. The article concludes by considering how the increasing use of AI technologies may challenge fundamental understandings of the role of trade marks, and the implications this could have for legal doctrine.

Suggested Citation

Batty, Rob, Trade Mark Infringement and Artificial Intelligence (August 16, 2021). New Zealand Business Law Quarterly (Forthcoming) , Available at SSRN: https://ssrn.com/abstract=3978248 or http://dx.doi.org/10.2139/ssrn.3978248

Rob Batty (Contact Author)

University of Auckland - Faculty of Law ( email )

Private Bag 92019
Auckland, AK 1142
New Zealand

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