Marketing is a popular theme in conversations about applying AI

• As brands go global, logos and shape marks are becoming more popular with marketers
• AI tools will change the ways that brands are communicated
• New means of communication and marketing will pose both quantitative and qualitative challenges to trademarks and trademark systems

Trademark rights are fundamentally about communication: they are the means by which consumers identify goods or services as coming from a particular source. While this principle is consistent throughout the world and has not changed over time, the means by which businesses and consumers communicate is constantly evolving.

One example of this is the greater use of non-traditional marks. As brands go global – and reflecting a more image-driven culture where photos and videos can be exchanged in seconds and emojis are often preferred to words – logos and shape marks are becoming more popular with marketers. The use of jingles or catchphrases, videos and animations is central to marketing and advertising, and trademark systems must respond. Hence the recently revised EU Trademark Directive provides for several different types of mark, including sound, motion, multimedia and holographic.

In coming years, AI tools will also change the way that brands are communicated, and we are in the foothills of this journey at the moment. A recent report by Daniel Faggella for Tech Emergence noted that: “During talks with execs and researchers from companies ranging from Facebook to Baidu, and IBM to AT&T, marketing has been a perennial theme in conversations of AI’s hottest applications.” Faggella identified five areas where AI has already had a significant effect in marketing: search; recommendation engines; programmatic advertising; marketing forecasting; and speech and text recognition.

Looking ahead, AI will enable brands to be more responsive and more targeted. In an article in CIO magazine published in September 2018, Philip Kushmaro described the concept of micro-segmentation, where AI can map each consumer’s individual journey: “AI technology enables marketers to separate their customers into distinct personas and understand exactly what motivates them. With this information in mind, marketers are able to focus on the specific needs of their audience and create a long-lasting relationship with the brand.”

Such new means of communication and marketing will pose both quantitative and qualitative challenges to trademarks and trademark systems. The number of trademarks will continue to grow, particularly as the range of features that can be protected increases and the cost of doing so drops. This will exacerbate the problem of clearing new marks, requiring better tools and analysis. Qualitatively, new technology also threatens to change the way that trademarks are seen. We have seen this already to some extent with debates over keyword advertising and what constitutes trademark use online. Expect similar issues to arise, particularly as more services are performed by computers without human involvement. For example, when a consumer places an online grocery order, but the shop substitutes one brand with another, is that infringement (or is it more akin to generic substitution in the pharmaceutical field)? Or take 3D printing: if a consumer buys a product to print at home, and the product has features protected by trademarks, is there any infringement and if so by whom?

These sorts of questions will in due course likely have to be addressed by lawyers and courts, but service providers may find themselves on the frontline, particularly if they are working in areas such as searching, watching or anti-counterfeiting and therefore, they will need the right tools for the job. Moreover, brand owners will expect their providers to offer innovative products to help them meet the demands of a tougher competitive environment – but at a competitive price and with high-quality service.

So, just as AI technology will play an ever-greater part in the communication of brands, it is inevitable that AI will also be central to managing the means by which brands are communicated – that is, trademarks and other IP rights.