Trade Mark Infringement and Artificial Intelligence

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.