AI vs. Trademark and Patent Law

The first part of our blog series focused on the ever-popular legal field of data protection. Blog post 2 told you a little about copyright in relation to AI. The third part now deals with the topic of AI vs. trademark and patent law (you know: Nike, Adidas, and those cool patented shoe insoles).

What and Whom Does Trademark and Patent Law Protect?

Trademark Law

We are all familiar with brand and product names, and they have a targeted influence on our purchasing behavior. So it comes as no surprise that many companies want to protect the names of their products and product lines for this very reason. Trademark law offers one way of doing this. Legislators have even managed to clearly define the term “trademark” for non-lawyers (rejoice!).

According to this, the following are protected as trademarks:

all signs,
in particular words, including personal names, images, letters, numbers, audio signals, three-dimensional designs,
including the shape of a product or its packaging, as well as other presentations, including colors and color combinations

These must be suitable for distinguishing the goods or services of one company from those of other companies. But how are goods or services protected by trademark law? Do I have to apply for and/or register trademark rights?

Unlike copyright (as described in blog post 2), trademark protection requires registration of the mark with the German Patent and Trademark Office (DPMA). Both natural persons (i.e., real people and not AI) and legal entities (such as limited liability companies, stock corporations, and associations) can do this. The registration process usually takes three to four months.

Patent Law

When we talk about patents, we are referring to technical inventions that (can) have a real impact on our lives. A wide variety of inventions can be protected by a patent: batteries, refrigerators (a German invention, by the way), paper punches, etc. The patent must therefore be a technical invention. Furthermore, the patent is characterized by its novelty, inventive step, and industrial applicability.
In order to protect an invention from unlawful exploitation, patent law requires registration with the DPMA, as described above for trademarks. Unlike copyright law, which we discussed in our second blog post, patent law involves an intensive examination in advance.

So What Does AI Have to Do with Trademarks and Patents?

AI-related goods and services can be the subject of trademark applications. Many trademark offices have responded to the AI boom and now offer the possibility of trademark protection for goods and services related to AI.
For example, in the design of graphic content, in addition to the existing copyright issues, there is also a trademark issue insofar as logos are created with AI generators. This is because a registered trademark does not necessarily have to be copied directly. There is also a risk of confusion with similar trademarks (e.g., logos).
Of course, the question also arises as to whether AI itself can create services that are protected by patent law. The “idea” behind the AI is of crucial importance here. The problem here is the question of when AI is technically mature enough to fulfill the “technical” requirement. The DPMA and the European Patent Office (EPO) will soon enlighten us on this matter and hopefully provide further information.
For example, a lack of copyright protection can be offset by the “idea” of AI as patent protection. Patent protection for software is possible, but opinions differ on this. In any case, the so-called Spotify algorithm has been recognized as a patent by the EPO.
AI can also infringe patent rights, but how? For example, AI controls a manufacturing process and recognizes that another, patent-protected process would be more efficient and automatically switches to this process. This would be an infringement of patent law. So there we have it.

Can AI Register Trademarks and Patents?

No.

What Have We Learned after the Third Blog Post?

AI and the interplay between trademarks and patents is an exciting topic to consider from many perspectives. Both trademark and patent law can be infringed upon through the use of AI. To avoid infringements, legal advice should be sought before any active use of AI. Legal experts are a dime a dozen.
Next week, we will continue with the topic of competition law and the extent to which it is relevant to artificial intelligence.