Recommended Reading: The Trademark Reporter's Theme Issue on Artificial Intelligence

The November-December 2024 (Vol. 114 No. 6) issue of the Trademark Reporter is devoted to artificial intelligence and its impact on trademark and related intellectual property law. [pdf here]. Willard Knox, Editor-in-Chief, summarizes the contents as follows (and below): "The TMR devotes this issue to the realm of artificial intelligence (“AI”). Whether one believes that AI is mostly hype or as seismic a change as the smartphone, there is no doubt that AI will evolve and improve, fundamentally changing one’s professional and private lives in ways one can only begin to imagine. The preeminent authors of the articles in this curated collection describe the present relationship between AI and trademarks (and complementary intellectual property) and explore what the future may bring to this emerging and evolving area of the law."

Editor’s Note: Theme Issue—Artificial Intelligence, by Pamela Chestek. The editors of The Trademark Reporter are pleased to devote this issue to the realm of artificial intelligence (“AI”). The issue looks, narrowly and broadly, at what impact AI may have on trademarks—the choice of trademarks, the effect of AI on consumer choice, and AI’s impact on jurisprudence.

AI and the “Death of Trademark” by Michael Grynberg. The author of this 2020 article, published before the introduction of ChatGPT by its creator, Open AI, in November 2022, imagines an artificial intelligence (“AI”) assistant able to make product choices for consumers—a capability that the author considered hypothetical but that has now been fully realized in today’s AI models. The author posits that trademarks will take a lesser role in product selection, perhaps even becoming superfluous.

Trademarks in an Algorithmic World, by Christine Haight Farley. The author of this 2023 article takes the next step (following the article “AI and the ‘Death of Trademark’” by Michael Grynberg) and points out that that the very foundation of modern trademark law, the “search costs theory,” may no longer apply when artificial intelligence agents are making product choices for consumers.

Trademark Confusion Revealed: An Empirical Analysis, by Daryl Lim. The author of this article considers the possibility of using empirical analysis to train artificial intelligence models that would allow courts to reach more consistent and accurate results on likelihood of trademark confusion and that would, in turn, allow trademark counselors to better predict likely outcomes before ever reaching the courts.

Large Legal Fictions: Profiling Legal Hallucinations in Large Language Models, by Matthew Dahl, Varun Magesh, Mirac Suzgun, and Daniel E. Ho. The authors of this article analyze the extent of legal hallucinations by different Large Language Models when evaluating district court cases and point out that hallucinations are inevitable as the artificial intelligence model tries to maintain fidelity to the training corpus, the user’s prompt (which may assume incorrect information), and the law itself, three areas that may be in conflict.

Trademark Search, Artificial Intelligence, and the Role of the Private Sector, by Sonia K. Katyal and Aniket Kesari. The authors of this article explore the realm of private trademark search providers already using artificial intelligence and their effect on trademark selection and propose that not just consumers but also trademark owners should be considered relevant economic actors in the trademark ecosystem, with a significant interest in selecting trademarks that will not be rejected by trademark offices.

Generating Rembrandt: Artificial Intelligence, Copyright, and Accountability in the 3A Era—the Human-Like Authors Are Already Here—a New Model, by Shlomit Yanisky-Ravid. The author of this article suggests that a new ownership model for works generated by artificial intelligence based on the existing work-made-for-hire copyright laws should be adopted in the “3A era” of automated, autonomous, and advanced technology.

Copyright Thickness, Thinness, and a Mannion Test for Images Produced by Generative Artificial Intelligence Applications, by Molly Torsen Stech. The author of this article searches for an answer to the conundrum of copyright ownership of works generated through the use of, or assistance from, artificial intelligence, and suggests taking a cue from the jurisprudence of the copyrightability of photographic works as considered in Mannion v. Coors Brewing Co.

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TTABlog comment: Once again, I thank The Trademark Reporter for allowing me to provide this issue to you all. This issue of the TMR is Copyright © 2024, the International Trademark Association, and is made available with the permission of The Trademark Reporter®.