Marques: Technology—six trends to watch

Technology is having an impact on every aspect of our lives—and trademark practice is no exception. The growth of the internet and electronic communication has already transformed many aspects of our jobs, but it is likely that we will see even more change in the next decade with the development of tools based on technologies such as blockchain and artificial intelligence (AI).

At this stage, it is hard to predict exactly what benefits these technologies will offer and how they will change our lives and our work. But we know that IP practitioners have always embraced new technological tools and no doubt they will continue to do so.

Marques takes seriously the importance of sharing knowledge about emerging tools and trends, and these are topics that are likely to feature in future Marques events, webinars and papers. There are six broad areas where we see technology affecting trademark practice.

Streamlining procedures

The days when communication with IP offices was by letter, fax or in person are long gone. Most IP offices now provide electronic filing, which is secure, simple to use and efficient, and many also provide electronic services in other areas, such as opposition and cancellation actions.

The EU Intellectual Property Office (EUIPO) has pioneered these changes, through the Cooperation Fund projects and now the European Union Intellectual Property Network (EUIPN). Marques has always welcomed and encouraged such initiatives.

"We have seen promising initiatives by online marketplaces, many of whom have developed standardised online dispute resolution systems for notice and takedown."

We have seen examples of some offices taking these services even further. For example, the IP Office of Singapore (IPOS) has launched the IPOS Go smartphone app to complement its IP2SG online services. The office claims that simple trademark applications can now be completed in less than 10 minutes, compared to 45 minutes before.

Another office, IP Australia, has launched Trade Mark Assist, an education tool to help businesses navigate trademark prosecution, which has been used by more than 50,000 customers.

We are pleased to see IP offices investing in these technologies and sharing insights into how they can be developed, for example at EUIPO’s IP Horizon 5.0 conference in 2019. Tools that can make trademark and design prosecution and similar tasks more efficient while upholding accuracy and integrity will be key to helping us manage the growing demand for IP rights.

Searching and clearance

Another area where we have already seen a significant impact from technology is in searching and clearing IP rights, especially trademarks and designs. Tools such as TMview and DesignView, both developed in the framework of European Cooperation under the EUIPN, offer almost instant online searches of the databases of dozens of IP offices, and these are complemented by commercial services that provide tailored functionality.

We are now seeing new tools emerging in trademark and design search, built on AI technologies. For example, the new Image Search tool in WIPO’s Global Brand Database uses machine learning to identify concepts within an image and find similar marks already registered. It then presents the results in order of similarity.

EUIPO’s eSearch plus enables images to be searched in combination with criteria such as the Vienna and Nice classifications. The further development of tools such as this will be particularly important for searching and clearing non-traditional trademarks, or those comprising complex elements. As with translation tools, the technology will improve rapidly as data is built up through use.

Fighting counterfeits

As more business moves online, counterfeiters are increasingly using the web as well as social media and online marketplaces in many sophisticated ways. Technology has helped us to respond by better tracing, tracking and identifying counterfeits.

No longer is it a question of just doing an internet search; we have tools to identify and take down counterfeits from our desktops, and to contact law enforcement authorities and customs, in a coordinated manner, such as by using the valuable IP Enforcement Portal administered by the Observatory on Infringement of Intellectual Property Rights in Europe.

The latest anticounterfeiting services available to brand owners include AI-based tools with algorithms that can recognise counterfeits quickly and accurately, based on analysis of text, images, etc.

Blockchain tools will be useful and last year EUIPO launched the Anti-Counterfeiting Blockathon Forum to encourage the development of initiatives to tackle counterfeiting. Projects such as these will be a vital support in our ongoing battle to keep consumers safe and to uphold brand value.

Dispute resolution

While technology has had an impact in many areas of trademark practice, we have yet to see many changes in the way disputes in the courts are resolved. This is understandable given the complexities and unpredictability of cases, and it is not likely or desirable that we will see computers replacing advocates or judges in our lifetimes.

However, we have seen promising initiatives by online marketplaces, many of whom have developed standardised online dispute resolution systems for notice and takedown. We were pleased to have a panel discussion including a representative of Facebook at Marques’ Luxury Brands Symposium in Milan last November, which showed how valuable these tools can be and how they are improving.

Something to watch over the coming decade is the extent to which the use of AI-based tools in supporting litigation in court will increase. AI technologies such as machine learning and deep learning rely on large datasets, and trademark law is rich in these thanks to the large number of fact-based decisions on issues such as distinctiveness and similarity.

We are likely to see the emergence of tools that can analyse IP office, Boards of Appeal and court decisions and potentially make predictions based on them. These are likely to be tools that will assist rather than replace qualified professionals, helping them to do their jobs and ultimately deliver fair results in an efficient way.

Managing contracts

Another aspect of work that is important to all IP managers is managing contracts and royalties, and we are increasingly seeing the use of AI tools here, for example in drafting and reviewing legal documents.

"We are likely to see the emergence of tools that can analyse IP office, Boards of Appeal and court decisions, and potentially make predictions based on them."

There is particular interest in the potential of blockchain-based technologies in recording and monitoring the licensing of IP assets, especially for unregistered rights such as copyright. One prominent proponent of using blockchain to transform the collection of royalties in the music industry is English musician Imogen Heap.

Blockchain applications already being developed in the trademark field are able to provide data intelligence for traceability and transparency, help with record management, control supply chains and identify unauthorised products.

Tracking consumer behaviour

Many of the topics we have discussed so far are specific to IP practice. However, as new technologies emerge, we will also have to be increasingly aware of how they affect the way that brands are used, advertised and promoted, and in turn perceived by consumers.

One sector at the forefront of this, with an emphasis on interactive tools and virtual reality, is the gaming sector. New technologies such as eye-tracking, which can be used to track consumer behaviour, may also support trademark practitioners, potentially providing evidence of distinctiveness, similarity or likelihood of confusion.

Much to learn

While we have seen huge impacts from technology already in our work, the likelihood is that there is much more to come in the next few years.

As the above-mentioned and other technologies emerge, they will have an effect on the way we work and in many cases they may replace low-value tasks enabling us as practitioners to focus on more strategic, higher value, work. The potential they promise makes this a very exciting time to be working in trademark law.

Thanks to Claus Eckhartt, Tove Graulund and Claire Lehr for their input into this article.

Susie Harris is chair of Marques. She is the general counsel of The Plum Guide, an online platform that brings guests and hosts together in cities around the world, and is responsible for all aspects of legal and regulatory, including IP. She can be contacted at: susie.harris@plumguide.com