Artificial intelligence or "AI" is defined as the theory and development of computer systems able to perform tasks that normally require human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages .
AI is charting out a course of its own in the Indian IP landscape playing an increasingly important role in the Indian legal system. It has become a part of how lawyers function, adopted by a diverse array of clients and even caters to improving the contours of judicial process. Nowadays, AI is used for research purposes, identifying stored information and collection of data as well as reviewing and analyzing documentation to minimize the risks involved.
AI applications are being increasingly deployed in IP Administration. For example, in the trademark field, IP offices are implementing a range of AI technologies for trademark searching, trademark examination and stakeholder interactions with the aim of improving the efficiency and consistency of the handling and processing of trademark registrations. WIPO’s Brand Image Search is one example of an AI tool that can be used for trademark searching in trademark prosecution . However, currently in India, legal professionals are struggling to keep up with the technological advancements inherent in AI — grappling with the idea and elements of how AI actually works in addition to understanding its pros and cons.
But first, we underline a few basic concepts involving trademark law — Trademarks are intended to distinguish the origin of goods and services from those of others with the ultimate idea to prevent consumer confusion. The prevalent trademark scenario revolves around the idea of of human perceptions and recollection — both for determining whether a trademark is registrable or not or whether it has been infringed. For instance, a trademark application may be rejected on Absolute Grounds for refusal if the applicant’s trademark is substantially identical with, or deceptively similar to a trademark already registered or applied by any person or entity or otherwise in respect to similar and/or identical goods or closely related services.
Converging trademark prosecution with automation could prove to be a game changer in the business of things as the processes in place are mainly linear and deadline driven. It can cater to many aspects such as monitoring trademarks effectively, docketing and deadline tracking – exactly what digital transformation is designed to achieve. For example, with automation of documentation tools, manually reviewing of documents may not turn out to be the best bet when there are pyramid of documents to review through.
AI solutions should be seen as a tool to aid trademark professionals and officials, so that they can be deployed to increase the efficiency of the examination process and to achieve greater consistency in decision-making
India: "Trademark Prosecution - Let's 'Zoom in' on Automation and Artificial Intelligence"
The benefits of AI are potentially significant and it is plausible to imagine the possibility of, and commercial demand for AI software which could assist with:
a) Brand creation – AI software can help in creating a list of possible new trade marks to be applied for or proposed to be launched by corporations which match a certain criteria pre-set by the applicant, e.g. to have a certain number of letters or the color combination or to convey a particular conceptual meaning.
b) Trademark clearance searches – Trademark watch and clearance searches are areas where AI is needed to be routinely used. Needless to say, it can create huge benefits for corporations and firms that work in the intellectual property domain. Trademark lawyers, paralegals, startups these days are all using AI to collaborate between teams and improve their functioning and processes. AI software can help in conducting trade mark searches with more efficiency and accuracy as compared to a human and could in turn easily analyze vast amounts of data.
Lawyers eyeing for similarities in trademarks have become an awful, inefficient, time-consuming, error-prone job, and for that sole reason AI intervention could come into the picture and do so much better than people. Between the increase in pure volume of applications and registrations over time and the disconnected nature of national IP offices, searching for similarity in marks by hand and human eyes can be a losing battle.
c) Identifying objections – AI software would be capable of analyzing large amounts of data, such as practice manuals and trade mark registers, trademark journals, search results, etc. in order to identify the likelihood of objections that may be raised by the Examiner against the mark (s) to be applied for registration, including objections on grounds such as descriptiveness and non-distinctiveness, possible marks already existing in the Trademarks Register that may be cited against the application and certain specification of goods/services objections.
d) Effect on Trademark Examination - Investing a considerable amount of resources to develop, test and implement AI-based examination tools could prove beneficial in the long run as it can improve consistency in decision making and optimizing management of examiners’ workload. AI can be used to extract relevant information from office action letters and can help in making decisions based on this information; applying this technique to Absolute Grounds and Relative Grounds deficiency, and decisions letters.
e) Smart contracts
A smart contract is a computer coded contract that can be auto-executed making use of blockchain technology. They are still in relatively early development but interest has been high due to the significant impact they could have on efficiency of processes across a wide range of industries including IP. IP is no exception and it is foreseeable that one day smart contracts could be used in relation to the transfer of IP assets such as trademarks.
The clauses in a particular contract could be encoded so much so that when the actual transfer of ownership rights occur from the assignor to the assignee, for eg., in trademark assignment — the specified amount of money to be paid in consideration, stamp duty or in lump-sum, whichever the case may be, or the number of trademarks transferred as per the schedule, could help in determining whether the relevant event has occurred or is to occur in the near future, ultimately changing the ownership of the IP on the relevant trade mark registers.
This would essentially remove the need for human intervention entirely once the legal contract has been executed thus reducing the administrative burden and consequently reducing costs and improving efficiency in the recordal of IP asset transfers such as trademarks in particular.
The use of AI by trademark registries around the world is gaining prevalence and are implemented in the realm of trademark searches, examination and in corresponding with various stakeholders with the aim of improving the efficiency and consistency of the handling and processing of trademark applications. As implementation of AI solutions by many of the registries around the world are in nascent stages, the Indian IP landscape needs to grapple with the opportunity and try to adopt AI driven solutions at a war footing.
AI solutions should be seen as a tool to aid trademark professionals and officials, so that they can be deployed to increase the efficiency of the examination process and to achieve greater consistency in decision-making. The rollout of AI solutions in searching and examination process allows for the involvement of trademark professionals to be focused on complex issues, with AI technologies offering efficient solutions for more menial tasks. For brand owners, as the various AI solutions are developed, the future should include greater predictability, improved outcomes, increased stakeholder confidence and overall lower prosecution costs.
AI solution implementation and uptake remains in development for many IP registries around the world including India. However, there is clear appetite among registries for the exploration of new technologies such as AI. To be hopeful, the technological landscape in the area of trademark processes will develop at a much faster pace in the very near future to become an indispensable tool for IP registries and trademark professionals alike in modern day practice.