REDEFINE INTELLECTUAL PROPERTY WITH ARTIFICIAL INTELLIGENCE

REDEFINE INTELLECTUAL PROPERTY WITH ARTIFICIAL INTELLIGENCE

Introduction

We have come a long way since 1955 when John McCarthy, winner of the Turing Prize in 1971 defined Artificial Intelligence (AI) as “Making a machine behaves in ways that would be called intelligent if human were so behaving”. It is only recently that AI technology has undergone a rapid progress and has become one of the hottest trends of the present world. The impact of AI on our day to day lives is intensively being deliberated upon in almost every corner of the world. It has garnered much needed attention not only from the business sector and academia but also from the policy makers and judiciary.

AI questions the most conventional Intellectual Property legal principles, such as “author”, “creator”, “originality”, or “inventiveness”. Can a machine be an author or an inventor? Should AI generated inventions be considered state of art? Who is the owner of AI generated works or inventions? Who should be held responsible for the creations and innovations generated by AI, if they encroach upon others’ rights or violate other legal provisions? With the increasing prevalence, and increasing capability of AI these are some of the Intellectual Property Law issues that the legal fraternity has to resolve.

This article proposes to address such issues and endeavors to provide suggestions so as to attune the law with the present developments.

AI and Copyright

Traditional Copyright law does not recognize AI generated works. It only protects the original creations of a human being. In a famous Monkey-Selfie copyright dispute, U.S. Copyright Office clarified that to fall within the protective shield of copyright law a work must be created by a human being.[1] This decision gave rise to challenges for the copyrightability of AI-generated works.

However, in United Kingdom the law is rather different. In UK Copyright Act, there is a provision which stipulates that if a work is computer-generated then the author is taken to be the person who facilitated the work to be created.[2] On similar terms we can assume that the author of AI generated work would be one who made the arrangement necessary for the creation of work.

With regard to Indian legal standards, Section 2 (d) of the Copyright Act, 1957, defines “author” “in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;”[3]

The complexity arises where AI becomes more advanced and fully autonomous and when it has the liberty to make its own decisions, it may become even more complicated to say with certainty by whom the arrangement necessary for the creation of work undertaken. As per current scenario only the human-authors of creative works may enjoy copyright protection. However, some scholars have advocated the idea of granting copyright to non-human authors. They argue that the realm of word “authorship” should be widened to incorporate both human and non-human authors.[4] The authorship of a work created by AI is still contentious. It is doubtless to say that to kickstart any AI based work human intervention is necessary but to determine the author/owner in a scenario where AI plays a leading role in completing the work is still under clouds.

AI and Patents

AI has the potential to challenge the core legal principles that are edifice of Patent law. Whether AI generated invention should be given protection under patent law, and if so, who should be considered as the inventor for such AI created inventions are the most fundamental questions that need to be addressed urgently. Some scholars are of the view that granting patent rights to AI-generated inventions would act as a catalyst for new and advanced innovations which would be difficult to achieve through human inventiveness solely. Others argue that granting patent protection to AI-generated inventions will raise the cost of research and development, increase the monopolies, thereby impeding innovation.

Another problem is with regard to setting the yardstick for ascertaining whether an AI generated invention is non-obvious. Determining the non-obviousness of an AI created invention is a practice full of uncertainty and complexity particularly for super intelligent AI that is capable of improving itself. As AI is permeating almost every sector and industries, deliberations on whether the present definition of a POSA (person ordinary skilled in art) is adequate for AI era or it should be redefined so as to include within its folds a person equipped with AI, assume much significance.[5]

Another, indeterminacy in a patent law relates to the liability of AI in cases where AI is the infringer of patent rights. With the changing landscape of the technological developments, most AIs are now capable of infringing other patent claims. The liability issue raises the question of who should be held accountable for the actions of AI, whether the AI itself or the developer of AI and how the liability of AI will be assessed.

The patent related issues for AI created inventions must be decided in the background of whether the patent rights to AI-generated inventions would further the objective of patent law or whether it would prove detrimental for the human conceived inventions.

Conclusion

On a concluding note, it is proposed that it is important to revisit the Intellectual Property Laws to bring them in conformity with the present technological developments which are defining the future of this world. Assigning authorship and inventorship to non-humans is a novel way to promote the growth and development of AI, which will boost the appetite of this world for more invention. However, instead of going for the complete overhaul of the rules and guidelines currently set in place, it would be feasible for the regulators to modify and restructure the present laws in order to avoid complex and lengthy process and to prevent the law from getting static.

The regulators have a big responsibility of creating a harmonious approach between the protection of rights of citizens / individuals and the need to encourage technological growth, while deciding upon the AI generated Intellectual Property issues.

Granting authorship to AI could preclude works solely generated by AI from falling into the public domain and offer the developer of AI some monopoly to the resulting works. The patent laws considering AI can have profound impacts on innovation, the society and economy which make it imperative for the people associated with Intellectual Property to find ways for the patent system to encourage innovation while minimizing any adverse consequences. This revisitation to IPR laws would allow the present IP system to continue promoting “the progress of science and useful arts” without any impediments.

[1] Naruto v Slater (PETA) 15-cv-4324.

[2] Copyright Designs and Patents Act 1988 (CDPA 1988) s 9(3).

[3] Copyright Act 1957 s 2(d) (iv).

[4] Ryan Abbott, ‘I Think, Therefore I Invent: Creative Computers and the Future of Patent Law’ (2016) 57 B.C. L. REV. 1079; Colin R. Davis, ‘An Evolutionary Step in Intellectual Property Rights— Artificial Intelligence and Intellectual Property’ (2011) 27 COMPUTER L. & SECURITY REV. 601.

[5] Artificial Intelligence Collides with Patent Law, WORLD ECONOMIC FORUM

http://www3.weforum.org/docs/WEF_48540_WP_End_of_Innovation_Protecting_Patent_Law.pdf.

 

“NANDINI” VERSUS “NANDHINI” – ‘NOT’ DECEPTIVELY SIMILAR TRADEMARKS

“NANDINI” VERSUS “NANDHINI” – ‘NOT’ DECEPTIVELY SIMILAR TRADEMARKS

Sonil Singhania & Sana Singh


30/7/2018  

The use of deceptively similar trademarks was allowable for goods or services falling under different classes and it never became a major issue of concern. For instance, the trademark MARUTI for cars also exists for tissue papers, hosiery products and also hardware items. Such independent existence of the same or similar trademark was acceptable and has been in use for products falling under different classes and do not pose any conflict or overlap between the relevant consumers. However, the courts maintained a consistent view that existence of deceptively similar trademarks were not permissible for goods or services falling under the same class.

But now, post the recent judgment of Nandhini Deluxe v. Karnataka Co-Operative Milk Producers Federation Ltd. Civil Appeal No. 2943-2944 of 2018; same or deceptively similar trademark can be used even for goods falling under the same class if they are visually distinct when compared. Supreme Court held that the use of similar trademarks for different goods or services, even though they might be falling under the same class, cannot be termed as infringement.

Karnataka Co-Operative Milk Producers Federation has been producing and selling milk and milk products since years and had obtained registrations for their trademark “NANDINI” along with its variants in class 29 for milk and milk products, in English as well as several other  languages, with a user date of 1985.  Nandhini Deluxe, a restaurant chain, which is in the market since the year 1989, applied for registration of their trademark “NANDHINI”, in class 29 for meat, fish, poultry, meat extracts, preserves, dried and cooked fruits and vegetables, jellies, jams, eggs, milk and milk products, edible oils and fats, salad dressings etc. This trademark application was allowed by the Registrar of trademarks post the completion of the opposition proceedings, whereas it was declined by the IPAB (Intellectual Property Appellate Board) as it disapproved of the registration of trademark “NANDHINI” as being deceptively similar to another trademark “NANDINI”, already in use prior to the adoption of the trademark “NANDHINI”, for having a similar pronunciation and only a basic difference of a single alphabet ‘H’ between the two marks. The IPAB held that the Karnataka Co-Operative Milk Producers Federation was in “regular and consistent use of the trademark “NANDINI” and it had become entrenched in the minds of the consumers and it would not be in the interest of the public to allow the restaurant chain to use the trademark “NANDHINI””. Thereafter, based on this, the High Court concurred with the above mentioned reasons as given by the IPAB and affirmed both marks to be deceptively similar, thereby disallowing the registration of the trademark “NANDHINI”. Additionally, the HC noted that Karnataka Co-Operative Milk Producers Federation was using the trademark “NANDINI” for goods like milk and milk products since 1985, whereas Nandhini Deluxe adopted the trademark “NANDHINI” for their restaurants since 1989 which proved the fact that Karnataka Co-Operative Milk Producers Federation was a prior user and adopter of the trademark “NANDINI”.

With the IPAB and the HC restraining Nandhini Deluxe, the restaurant chain, from using the “NANDHINI” trademark and considering its use to be an infringement of the well-known trademark “NANDINI”, Nadhini Deluxe further appealed against before the Supreme Court.

The Supreme Court put together a detailed comparison on the trademarks in dispute and observed that the marks in question, “NANDHINI”/”NANDINI” of Nadhini Deluxe (Appellant) and Karnataka Co-Operative Milk Producers Federation (Respondent), respectively,  cannot be claimed to be deceptively similar, and not amounting to any confusion among the general public. The Court held as follows: “Though there is a phonetic similarity insofar as the words “NANDHINI”/”NANDINI” are concerned, the trademark with logo adopted by the two parties are altogether different. The manner in which the Appellant has written “NANDHINI” in totally different font as compared to the style adopted by the respondent for its trademark “NANDINI”. Further, the Appellant has used and added the suffix ‘Deluxe’ and, thus, its trademark is “NANDHINI DELUXE”. It is followed by the words ‘the real spice of life’. There is device of lamp with the word “NANDHINI”. In contrast, the Respondent has used only one word, namely, “NANDINI” which is not prefixed or suffixed by any word. In its trademark, “NANDINI” encircled by an egg shaped circle has been placed below the ‘Cow’ logo. A bare perusal of the two trademarks would show that there is hardly any similarity of the appellant’s trademark with that of the respondent when these trademarks are seen in totality.”

The Court held, “NANDHINI”/”NANDINI” is a generic name, representing a goddess and a cow in Hindu mythology, and it is not an invented or coined word by anyone to the dispute.”

Further the Court concluded that there is no provision of law which expressly prohibits registration of a trademark which is similar to an existing trademark and used for dissimilar goods, even when they fall under the same class. It was held that no person can have exclusive right or monopoly over the entire class of goods, especially when the trademark is not being used with respect to all the goods falling under the said class. Supreme Court’s decision clearly construes that two visually distinct and different marks cannot be called deceptively similar especially when they are being used for different goods.

This in turn would be a huge relief to the trademark owners having trademarks similar to already existing trademarks for dissimilar goods falling under same class.

The complete judgment can be accessed at this link.