Can data predict the outcomes of applications?

• The collection and analysis of data will be key to trademark practitioners’ success
• The skilful use of data can predict case outcomes
• Firms will need to decide whether to build their own data or use off-the-shelf tools

The explosion of interest in AI in the past couple of years is largely linked to recognition of the value of Big Data in enabling computers to learn more and faster. As connected cars are demonstrating, if they have access to a wide variety and huge number of data points, computers can learn how to carry out many tasks that we think of as requiring intelligence.

In the world of trademarks, as one practitioner says: “To what extent can you use data to predict the outcomes of new applications?” The answer might be: quite a lot. A computer with access to thousands of decisions on previous applications, cancellation decisions, oppositions and court judgments could make predictions about the likelihood of success in an application or contentious proceeding with a degree of confidence that might easily exceed that of humans. As some practitioners have asked, how many European trademark attorneys can say they know every EUIPO Board of Appeal decision? But a computer could very quickly scan all the relevant cases, assess how relevant they are to the case at hand and predict what the outcome will be.

The rate of progress will be driven by what data is available and how accessible it is, but the signs are that much IP office data (eg, on grounds for refusal, oppositions, cancellation actions and appeals) will be usable. Indeed, WIPO held a meeting with national IP offices in May 2018 to discuss the use of machine learning in their processes. Court rulings may take longer to assimilate, although at least one service provider is working with a law reports database to make that information accessible.

But of course the technology could also be used for many other trademark tasks, such as identifying and assessing evidence of use; conducting and recording consumer surveys; tracking trends in counterfeiting and predicting which areas to target (discussed further below); and drafting licences and coexistence agreements. It is noteworthy that, recognising the increased role that data and privacy issues play for trademark attorneys, INTA recently set up its Data Protection Committee.