Trademarks in the Age of Automated Commerce: Consumer Choice and Autonomy

Abstract In the age of automated commerce, powered by artificial intelligence and machine learning (AI/ML) tools, the role of trademarks in shopping may be diminishing. For instance, the Alexa voice assistant will announce only a couple of purchase options under specific trademarks, concealing the plenitude of other products on its interface. Another example is that Amazon will pursue the shipping-then-shopping scenario, with trademarks being perceived by consumers only upon delivery. Moreover, it has been predicted that, in some cases, the new AI/ML tools will search for products irrespective of trademarks and will do so faster than any human being. Under those circumstances, consumer search costs will be lower, not because of trademarks but because of the new shopping architecture based on those tools. While lowering consumer search costs has traditionally been the role of trademarks, the availability of other tools for the same purpose may be a positive development. However, another trend is that the new AI/ML tools are constantly taking part in consumer decision-making, possibly reducing consumers’ freedom of choice and personal autonomy. In attempting to tackle this issue, it is worth approaching trademarks from the perspective of choice and autonomy. Seen from this angle, it may be possible to learn specific lessons from European Union (EU) trademark law that will assist in reshaping the automated – and autonomous – shopping architecture for the benefit of consumer well-being. In this exercise, close attention will be paid to the case-law of the Court of Justice of the European Union, with its discourse on product alternatives, while due regard will be shown to the new legislation on the platform economy in the EU. In the end, this paper will demonstrate that trademarks are valuable not only because they help reduce search costs but also because they promote alternatives and, thus, improve consumers’ general autonomy.