ABSTRACT
Consumers generally rely on trademarks to navigate consumption choices. Consumers use trademarks as a convenient way to decide whether to purchase products and services in adjacent markets. Part I of this Chapter explores AI’s liberating effect on bounded rationality and consumers’ need to rely on trademarks as decisional heuristics. Consumers simply traded one heuristic for another, now depending on digital platforms to curate the products and services they consume. This shift raises new questions about liability for trademark infringement when digital platforms like Amazon recommend counterfeit products.
Part II explores AI-assisted adjudication of trademark disputes from conception to implementation. It draws on theoretical models and working prototypes in adjacent areas of the law to reveal the opportunities and challenges that trademark scholars and practitioners should consider. Part II also proposes reformulating the likelihood of confusion standard to make it more AI-friendly and focus on the factors that matter.
Part III identifies bias, accountability, and data scarcity as three key challenges to deploying AI in trademark disputes. This Chapter draws on the latest developments in experimental psychology, algorithmic techniques, and legal scholarship to address these challenges. These challenges are common to other areas of the law and therefore have broader implications beyond trademarks.
Lim, Daryl, Computational Trademark Infringement and Adjudication (October 26, 2022) in Research Handbook on Intellectual Property and Artificial Intelligence (Ryan Abbott ed), Forthcoming.
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