00:06
Adam Stofsky
Alright, I'd like to move on to a couple other kinds of intellectual property, particularly trademark. This has just kind of been on my mind a lot. First of all, can you just quickly define for our audience what a trademark is? 

00:19
Annette Hurst
Sure. So a trademark can be a word, it can be a symbol or design. Basically it's some set of things that is used to identify a product or a service. So a very famous example that a lot of people will think of immediately is the Nike swoosh. Right. That Nike swoosh is an example of a design trademark. Also you probably know that Nike has a phrase that they use all the time, just do it. And that phrase itself can also be a catchphrase, can be a trademark. And then of course continuing with that example, the company name Nike is used as a brand on the shoes. And so that is a trademark as is a particular product line, Air Jordans. Right. And Air Jordans can also be a trademark. So it can be a variety of different things. 

01:13
Annette Hurst
It can be visual, it can be words, it can be a single word or a slogan. But the bottom line is it's used to indicate the source of a product or a service, right? 

01:26
Adam Stofsky
So customers don't get confused about what they're buying. 

01:29
Annette Hurst
Right. It's a shorthand for customers so that they can look for something that they have a set of associations with as quality or, and they can choose the products that they want. 

01:41
Adam Stofsky
So are there risks of these AI systems either incorporating existing trademarks into materials you might make for marketing or some other purpose or even creating a trademark, creating an icon or a logo that actually infringes someone else's mark. Is this a real risk? 

02:01
Annette Hurst
Definitely it's a risk. Just the way when people do it's a risk. All the same risks. So you could use a generative AI, could have access, it has access to these large language models. They're trained on a massive amount of textual material and visual material that's available on the Internet publicly. And so it's possible that when you prompt the models to give you outputs that it could include trademarked material of some kind. 

02:30
Adam Stofsky
Is it an excuse under IP law to say hey, judge, or hey, other company? It wasn't my fault. I didn't mean to do this. It wasn't, I didn't, I wasn't trying to infringe. I'm really sorry. Does that matter? 

02:44
Annette Hurst
That's a great question. Generally it doesn't matter. So like copyright infringement for example is strict liability. If you copied it, you're stuck. 

02:52
Adam Stofsky
In other words, like your intention, it doesn't matter at all, right? 

02:59
Annette Hurst
In trademark, your intention matters a little bit. It can make things worse if you intended to use somebody's trademark without their permission. But it can't really help if you end up accidentally using their trademark and consumers get confused as a result. Because trademark is designed not just to help businesses protect their brand equity, it's also designed to help consumers from confusion in the marketplace and to be able to rely on that information as a source about what they're buying.