Author: Rani Mol.D, LLM from Inter University Centre for Intellectual Property Right Studies (IUCIPRS), Cochin University of Science and Technology (CUSAT).
In the past 19th-century markets, shopkeepers were trying hard to convince the buyers with regard to the quality, reliability and durability of their products. At this digital era, it is the AI assistant who keeps on persuading us throughout our web activities. Mass surveillance is done when we enter each social media platforms. The celebrated term of” surveillance capitalism” is gaining much more importance today.
A large group of people are employed as social media influencers, and they are entrusted with the job of finding the tastes and preferences of people (consumers).
Brands themselves are pretty not sure about what kind of alterations or modifications should they make to their brand in order to be the leading one in the market. For finding such information, and AI assistant collects data from consumers.
This may appear in several forms which include surveys which you see while watching a you-tube video, chat-bots that appear while you log into a website etc. These data are kept in the cloud and later used by the commerce platforms to re-assess the changes they need to make on their brands.
With a lot of understanding made through these sorted data, products accordingly are imported in relation to the responses of consumers made with the help of AI assistants.
There are lots of worries while thinking in terms of a market in e-commerce. With this new model, a choice of a human being can be fully replaced either expressly or impliedly. In many ways, the role of a human consumer can be limited and an artificial consumer can have a much more role to play in e-commerce that is equipped with AI functionalities. Platforms like Amazon have already incorporated features of automatic execution model within their app’s settings.
Default settings can be made in amazon indicating to make automatic execution of a purchase. This will be done when you ask Amazon’s Alexa to buy something generally (for instance, give a command to buy some toothpaste). It will select the brand and the product for you. This decision would be based on your past purchasing history. However, Alexa may also order products for which you may haven’t made a previous purchasing history.
AI gatekeeping is invested with tons of money by these e-commerce leaders. A predictive mode of retail is likely to happen massively when AI assistants control the working of these e-commerce platforms. As mentioned earlier, if AI takes the lead, many products would be purchased by these gatekeepers. However, if the consumer finds the product as faulty or unfit for her, she may return such a product. This can lead to the problem of massive scale returns and litigations may also arise in connection with AI based retail system.
Issues regarding unfair competition can also be anticipated in these e-commerce platforms. With default settings, the AI assistant would suggest only top three branded products that are available in such a portal. This may restrict new entries to the e-commerce markets which can likely invite the problem of unfair competition.
Issues and questions with regard to the AI based e-commerce include:
Can the average consumer be replaced with the artificial consumer?
Can there be consumer confusion in such a case?
The problem associated with an average consumer is imperfect recollection. Will AI have such a problem?
Who would be liable for trademark infringement in case of AI making product suggestions and purchasing decisions?
Promoting a brand can happen so consciously with the help of AI assistants. Certain brands can be repeatedly suggested to consumers through sponsored suggestions, and consumers may give it a try for it. Moreover, sponsored ratings and comments can happen in this AI based e-commerce. With a lot of sales happening through online, can these ratings and comments make a mark well-known? This is also a question to be dealt with importance. How come the filters (such as price, brand, type of material etc.) that we apply during our purchase decision would be made in an automatic execution model? Sponsored blogging also takes place on Facebook, Instagram etc. and sponsored vlogging takes place on YouTube. These too have a lot of influences our purchasing decisions.
There are greater chances of manipulations in these platforms. Both the consumers and the Courts should be given caution while stepping our feet to a completely AI-featured e-commerce system. Though the AI based retail hasn’t been developed to a fully-fledged one, we should try to foresee the problems that can occur in the future. From the very beginning of trademark law, consumers are regarded as the king. This should not be replaced with AI being the king. The core concepts in which trademark law is built must not be forgotten even in the coming digital age. Hence, there should be cross-checks in these platforms and transparency has to be ensured so that the rights of consumers and the core concepts of trademark law can be protected.
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