The existential threat: the idea of ‘similar’ may change

• Brands face new challenges arising from globalisation and technology
• The way in which consumers experience and interact with trademarks will change
• Trademark practitioners will need to develop innovative strategies for protection and enforcement

Trademark practitioners should never lose sight of the fact that they are a part of a world that is fundamentally changing. Digital technology, regulations, the emergence of new markets and innovative business models are disrupting the way people communicate – including the way in which brand owners communicate with consumers.

The automotive industry, which is set for seismic changes in the next decade, provides one example. One popular prediction is that car ownership will become less common, as people will simply call up an autonomous car on demand and rent it for the duration of their journey. In this scenario, where people do not own cars, design is standardised and there is no ‘driving’ experience, will they care what brand it is? Or will different brands become important – so that more value is placed on the entertainment provider in the vehicle than the manufacturer?

A different threat is posed by regulators which wish to impose plain packaging – this has already come to the cigarette industry, with a major impact on how companies can use their trademarks, and could soon hit industries such as confectionery, beverages and gambling. Good trademark practitioners will be able to advise on the regulatory threat and how to respond to it.

The development of AI by retailers and service providers may raise even more fundamental questions: with the Internet of Things and everything being connected, a computer may be making a purchasing decision (eg, to restock your fridge) with little or no human involvement. In that case, who is the consumer and what role does the trademark play? Is the trademark even fulfilling the basic function of identifying the origin of the goods? We have seen some similar issues addressed in cases over AdWords, and they have not been easy to resolve; we can expect many more such disputes to arise as the Internet of Things spreads.

These issues are explored further in our report on the future of in-house trademark departments, but they also pose questions for trademark law practitioners, including about fundamental concepts such as likelihood of confusion, bad faith, acquiescence, distinctiveness and what constitutes use. As one practitioner says: “At the very least our idea of what is similar may change. We are becoming more sophisticated and able to choose between brands. We’re also better informed.”