By Laura Geyer and Andrew Costa
This month, Of Counsel Laura Geyer and Associate Andrew Costa attended the American Bar Association’s IPLSPRING conference in Rockville, Maryland. During the conference, Laura and Andrew participated in a variety of CLE sessions covering topics like international trademark prosecution and enforcement, deepfakes, attorney ethics, and (of course) AI. Laura also attended a live-TTAB session involving a trademark dispute between Flower Child (the restaurant) and Flour Child (a frozen pizza brand); while Andrew participated in the ABA AI Task Force’s annual in-person meeting. We share here some of the key takeaways they had from the conference.
- Artificial Intelligence – Artificial Intelligence was center stage throughout the conference, particularly with respect to attorney ethics and professionalism, the responsible use of generative AI, and deep fakes (more on that next). TL;DR – AI is like a “sloppy intern” or an overworked associate, who must be supervised, monitored and whose work product likely contains good material, but needs to be checked closely.
- Attorney Ethics & Professionalism: Both the USPTO and other IP attorney speakers stressed that client information should not be put into AI systems, and any work product created by AI must be checked by a “real life” lawyer. Both state bar and USPTO ethics rules require attorneys to sign all filings, attesting to their accuracy, thus attorneys will end up responsible for AI generated misinformation (like fake cases) contained in submissions, whether to the court or the USPTO. One presenter noted several recent judicial responses to attorneys relying on “hallucinated” cases.
- IP Infringement: The potential for IP infringement when using AI remains a constant concern. Since generative AI often draws from publicly available datasets, some of which are absolutely not public domain (like Getty images) and other proprietary sources, copyright infringement in particular is extremely easy to commit as is its embarrassing cousin, plagiarism.
- Deep Fakes – Deep fakes (or “inauthentic digital content”) is a pressing concern for news media outlets and Congress alike. So much so that lawmakers have introduced over 40 deep fake-preventative bills this session – it is anyone’s guess whether one will become law. Detecting deep fakes is expected to get increasingly more difficult, while at the same time, the presence of deep fakers makes news organizations concerned about being able to authenticate “sensational” (but true) stories that on their face seem fake. The consensus among panelists was that regulation needs to be paired with greater public education around AI and civics: a better educated consumer of information is harder to fool.
- Trade Secrets – Trade secrets continue to be of increasing importance to businesses (likely increasingly so after the FTC recent final rule on restrictive covenants), but only available if businesses do the work necessary to keep them secret. Businesses should train employees on confidentiality and trade secrets, develop policies that are routinely reviewed, and keep confidential and trade secret information limited to only those who actually must know the information. Other practices like intake meetings with incoming employees to remind them not to share their prior employer’s trade secret or confidential information in their work with your business are also important to avoid being the unintended recipient of other’s trade secrets (and of course reminding departing employees at exit meetings about maintaining your information and trade secrets in confidence after departure). Studies show that businesses and employees generally differ on what they think are “trade secrets” or company property – being proactive in making sure your employees understand where the line is in your business or industry is key.
- Sensitivity and Cultural Awareness in Branding: This panel recommended that trademark attorneys should not simply clear trademarks as registrable or non-infringing; we should also advise clients on potential cultural or social implications of marks. Searches should include research on word or image origin, to flag those with current or historically problematic associations based on, for example, race, gender, sexual orientation, religion, neurodiversity, mental illness, people with mental and physical disabilities, or other marginalized groups, keeping in mind any field-relevant divisive issues. Armed with this background, we can assist the client in understanding the potential for PR disasters or other brand-injuring possibilities and help them select marks that minimize the likelihood of such outcomes.