Nikita Munjal is a 3L JD/MBA Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

Using the Internet inevitably requires consenting to have your personal information used, collected, and disclosed by the websites you visit. A common reason for individuals, corporations, and non-profit organizations to collect your personal information is to influence your behaviour online, from your to your . One of the most effective ways to influence consumer behaviour online is through targeted advertising.

Value for Advertisers

Access to personal information has become necessary for advertisers to convert potential leads into customers. Think back to 2012, for example, when a suggested that a statistician working at Target predicted a teenage girl’s pregnancy based on her shopping habits. What did Target do with this information? It mailed her coupons for baby clothes and cribs.

that the value of your personal information to advertisers depends on various factors. Factors influencing value include your gender, race, and sensitivity of the information (that is, cost more than ). If, for example, the target audience for a new sneaker launch is young males of middle eastern origin, the spent to acquire your personal information is a minor investment to incur to influence you to purchase $180 sneakers.

Value for Users

Traditionally, users have valued the ability to share their personal information while using online services, like search engines or social media platforms, citing their .

However, increasingly, . This trend has mobilized startups in Silicon Valley to appeal to privacy-conscious users by providing them an incentive to share their personal information. Known as paid-to-surf models, companies in this space require their users to install browser extensions to track their browsing.

What monetary value do some privacy-conscious users demand to share their personal information? $20 a month for users of . Others are . While these paid-to-surf models have the potential to be disruptive, they are not yet a viable alternative, as users must surf a certain amount before they can cash out. ��

Value Going Forward

The tech industry has built empires based on collecting, using, and selling its users’ personal information to third-party advertisers. Surprisingly, some factions of the tech industry are modifying their business models to limit the tracking of personal information. Apple, for example, introduced a new iOS in 2021, s. Similarly, on its Chrome browser is estimated to impact millions of advertisers.

Apple and Google argue that these changes are necessary to respond to increasing and customer sensitivity to sharing personal information (the IPilogue has documented increased regulation in the and ). However, , including , lament that the changes are veiled anti-competitive practices.

Interestingly, increasing barriers to the online advertising ecosystem may benefit users. If access to personal information becomes impeded, interested parties may need to incentivize users to share their personal information, increasing users’ bargaining power. Although it is unclear what effect Apple and Google’s changes will have on the ecosystem, I am hopeful that users can leverage more control over their personal information for fair compensation by technology companies or advertisers for their valuable commodity.

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Alice Xie is an IPilogue Writer and a 1L JD Candidate at Western University’s Faculty of Law.

For die-hard Apple fans who were quick enough to get their hands on an iPhone 14 Pro or iPhone 14 Pro Max upon their release in early September, a new feature would have come as a pleasant surprise. Apple users have been dissatisfied with the “notch” — the black space sinking into the top of the screen. With the latest release, Apple introduced a new feature called “,” which is a smart tool that enhanced the notch. Apart from being an interactive upgrade, Dynamic Island has an interesting connection to Jamaica. Interestingly, Apple first for Dynamic Island with the Jamaican Intellectual Property Office (“JIPO”) back in July before filing it in the U.S. the day the new iPhones became available for pre-order.

The Logic Behind it

How was Apple able to do this? The United States Patent and Trademark Office (“USPTO”), the governing body for national trademarks, accepts foreign trademark applications as a valid basis for filing for the same trademark in the U.S. Specifically, allows applicants to claim a priority filing date of a trademark if they file the application with the USPTO within six months of the first application in a foreign treaty country. In this case, Apple filed the trademark application for Dynamic Island on July 12, 2022, in Jamaica, a member of the which recognizes the right of priority. This filing acted as a placeholder for Dynamic Island’s trademark until Apple eventually filed an application with the USPTO for the feature.

Now, why Jamaica? All thanks to the JIPO’s process for trademark search. Individuals or companies wanting to perform a trademark search in Jamaica must . In comparison, the USPTO’s trademark search process is significantly more accessible. Using the USPTO’s Trademark Electronic Search System, anyone can for free to see all the information of national trademark filings. ��������’s filing choice with the JIPO makes sense here. Individuals or companies must take a trip to Jamaica to find new trademark applications filed by Apple – a costly and timely effort. With the JIPO’s practically unsearchable database, Apple has a six-month window to hide its newest developments from the eyes of competitors and the curious public until, if it wishes, the product release day. By combining sections intent to use the trademark in the U.S., and 44(d), Apple filed a trademark application for Dynamic Island on September 9, 2022, with a priority claim date of July 12, 2022.��

It is not just Apple

Apple has a history of filing trademark applications in foreign jurisdictions going back to as early as , but is not the only company with knowledge of this strategy. The trademark filing history of other technology giants like shares the same pattern as ��������’s, but in different foreign jurisdictions. Google, for example, first filed the trademark application for Google Chromecast in the Kingdom of Tonga on before a month and a half later. Jamaica seems to be just one of many jurisdictions without a searchable online trademark database.

Loophole or fair strategy?

The method of foreign trademark filing raises the question of whether it is, on an extreme end, an exploitation of trademark law that regulatory bodies should address, or a perfectly legal strategy for those that are willing to spend the time and money to protect their privacy of developments. One concern is that smaller companies in the U.S. without the means to exploit this method ��cannot enjoy this competitive advantage as technology giants could. On the other hand, perhaps not all companies deem a six-month window of privacy valuable enough to pursue this lengthy process. After all, not many corporations have such high-stakes patents that receive widespread publicity. Thus, this strategy may not ever be sufficiently employed to be of concern.

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Pankhuri Malik is an IPilogue Writer, IP Innovation Clinic Fellow, and an LLM Candidate at Osgoode Hall Law School.

On June 8, 2022, Apple took a hit to its trademark portfolio when it lost another trademark battle with Swatch, the famous Swiss watchmaker, before the General Court of the European Union. Through its , the General Court upheld lower court decisions revoking ��������’s rights in its THINK DIFFERENT trademarks.

Apple v Swatch 3.0?

This case is not the first time Apple has lost in court to Swatch. In 2016, Swatch ��������’s trademark application for the mark “iWatch” before the UK Intellectual Property Office, forcing Apple to call its smartwatch “”

Then in 2021, ��a UK High Court permitted Swatch to seek trademark protection for Steve Job’s famous phrase “One More Thing.” The Court did not find evidence of in Swatch’s application, though it noted that Swatch had filed it only to Apple.

Now, Apple has lost its third, or rather trademark battle against Swatch.

Background

In 2016-2017, Apple and Swatch, regarding their “Think Different” and “Tick Different” marks. In 2016, Swatch filed three applications before the European Union Intellectual Property Office (EUIPO) seeking revocation of ��������’s “Think Different” marks on grounds of . Then in 2017, Apple sued Swatch for trademark infringement against its mark “Tick Different”, an action it lost in 2019 before the Federal Administrative Court in Switzerland. Apple claimed that the mark was deceptively similar to its “Think Different” marks. But the court found that the marks were more dissimilar in the eyes of the average consumer.

Now, the proceedings emanating from Swatch’s revocation petitions have finally come to a head. In , the Cancellation Division of the EUIPO revoked ��������’s rights in its “Think Different” marks, a decision that was upheld by the Board of Appeal in November 2020. On the General Court of the European Union dismissed ��������’s applications for review of the Fourth Board of Appeal’s decision.

The Turning Point

The crux of the issue came down to evidence. Swatch filed the petitions on October 14, 2016, so Apple was required to present evidence showing “genuine use” of the mark in the immediately preceding five years. of a mark can only be found when it has been used to distinguish the goods to identify their origin.

In ��������’s case, the mark “Think Different” was used extensively till 2002, when its use mostly faded with the launch of the MacBook. The court noted that the mark does not appear prominently on ��������’s products nor does it draw consumer attention. The court also stated that “Think Different” had not been used to satisfy the essential function of a mark; in essence, to identify the origin of the goods.

Apple was required to submit evidence corroborating its use in the five years immediately preceding Swatch’s applications. The court noted, however, that ��������’s evidence either does not show genuine use or falls of the five years.

What’s next?

The decision effectively makes the mark “Think Different” fall in the public domain and is closely preceded by chatter about ��������’s unethical trademark practices. While this battle between the companies seems to have ended, it will be interesting to see if they will oppose each other again.

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Sally Yoon is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Given the power of ��������’s brand, it is no surprise that they actively challenge trademarks that resemble their own to protect the dilution of their trademark. But this raises some key questions: Should Apple have the right to challenge all trademarks relating to an apple? What about fruits that bear a resemblance to an apple? In its act of trademark enforcement, Apple seems to be casting the net as widely as possible. According to the , a research initiative seeking to hold large technology companies accountable, Apple filed 215 trademark oppositions, nearly two-thirds more than all the trademark oppositions of Microsoft, Amazon, Facebook and Google.

��������’s numerous filings are targeting that are seemingly unrelated to the company’s brand, including but not limited to “an organization that supports families of children with autism, a school district in Appleton, Wisconsin, and an online test prep service for nursing students”.

The as “a trademark owner that uses its trademark rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow.” ��Apple has taken issue with individuals and businesses trademarking anything related to apples, and even other fruits. Those targeted include individuals and businesses providing services that Apple does not, such as . , Apple also filed an opposition to the trademark of Stephanie Carlisi’s stage name “Franki Pineapple”, as they were “both the names of fruits, and thus convey a similar commercial impression”.

��������’s argument against these companies in mainly emphasizes ��������’s ��significant brand value – as a business grows, so do its efforts to prevent the brand’s dilution. Many smaller parties are unable to respond to opposition because of the costs involved; it can often seem like they have no choice at all. With no opposing voice loud enough to fight back, arguments emphasizing brand values only encourage large companies to continue to enforce their trademarks aggressively and boundlessly.

However, brands attached with the term “trademark bully” can face negative consequences and be reprimanded by the courts for filing “weak” cases. In 2016, Louis Vuitton’s inability to pass off ’s parodical products as a “joke” led to . , the district judge stated that “[i]n some cases … it is better to ‘accept the implied compliment in [a] parody’ and to smile or laugh than it is to sue”. ��For this reason, trademark enforcement can be seen as a double-edged sword.

Image from United States District Court for the Southern District of New 91��ɫ

In the media, world-famous brands are often , and infringers are sympathized with. Still, ��many companies are simply trying to protect their brand’s dilution. Clarifying the thresholds for depreciation of value and distinctiveness of trademarks would be beneficial to ensure that smaller businesses and individuals are not silenced by nets cast too widely and prevent companies from enforcing their trademarks over-aggressively and falling victim to the double-edged sword of trademark enforcement.

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Emily Xiang is an IPilogue Writer, the President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD candidate at Osgoode Hall Law School.

So far, intellectual property law has protected some pretty wild things – biological , football turfs, even methods for building the . But, is it possible to protect an experience? In June 2019, major amendments to Canada’s (RSC 1985 c T-13) came into force, including the protection of non-traditional trademarks consisting, in whole or in part, of sounds, holograms, moving images, scents, tastes, colours, three-dimensional shapes, modes of packaging goods, textures, and positioning of signs. This legislative addition is critical when assessing how businesses and marketers may potentially protect multisensory experiences (MSEs). However, certain barriers arise in applying traditional intellectual property principles to such sui generis subject matters. Let’s take a look at some examples.

Sonic Seasoning: Combining Music with Flavour

refers to the multisensory phenomenon that occurs when the sounds that one hears have a psychological effect on one’s taste perception. Since this discovery, in the food and beverage industry have sought to carve out a unique space in the marketplace for food and sound pairings, making the combination itself the centrepiece for more extensive marketing campaigns invoking a particular “atmosphere” or “experience.” For instance, in 2020, published an audio content series that illustrated six of their cheeses using specifically curated sounds. Beer companies like have also embarked on projects to provide consumers with “” drinking experiences through packaging design, music, taste, and photography.[1]

While the amendments to the Trademarks Act now protect and separately, brand owners should be aware that applications for such marks require that the taste or sound meet the prescribed standards of distinctiveness and non-functionality. On distinctiveness, evidence would need to be submitted to demonstrate that the brand’s reputation of the mark in question is sufficient to trump another primary meaning that a member of the public might attribute to the taste or sound. The non-functionality standard may also cause issues for applicants seeking trademark protection for tastes since the primary purpose of foods and beverages is to provide or impart flavour.

that mark owners seeking trademark protection for MSEs should instead apply for “” protection, a “distinguishing guise” or “a mode of wrapping or packaging wares.” While the applicant would still need to show distinctiveness and non-functionality, trade dress protection seems to most adequately address the overall “concept” or “feel” of a product, so long as the features are source-identifying.

Trademarking the “Consumer In-Store Experience”

Auditory cues can pair with other sensory tools to market products and services. Research into has shown that such factors as lighting, flooring, music, decor, and even fragrance play a role in driving consumer experience and behaviour. In his book In Pursuit of Silence: Listening for Meaning in a World of Noise, George Prochnik discusses the soundscapes developed by Abercrombie & Fitch, in which “loud music and spotlit darkness [are used to] introduce a state of celebratory arousal. Indeed, if you walk around your local branch of Abercrombie & Fitch, you may feel that there would be something downright frigid in considering your purchase too closely.” are increasingly used by to conjure particular consumer experiences, whether it be in retail stores, car showrooms, sports stadiums, airports, banks, or apartment buildings. For instance, infuses the air of its luxurious line of “Park Hyatt” hotels with a signature fragrance in the hopes of creating an association in the minds of its customers between the scent and the level of luxury at the Park Hyatt.

In 2013, successfully applied for intellectual property protection of the design and layout of its signature retail store. The USPTO granted the tech giant an arguably broad trademark that covered various features of the space, including clear glass storefront surrounded by a paneled facade, rectangular recessed lighting units covering the ceiling, and rectangular tables arranged in lines covering the floor space. Such details can make up one’s entire ‘’ of an Apple store, thereby qualifying for MSE trademark protection.��

Conclusion

As the scope of intellectual property law continues to expand, questions arise as to how existing IP regimes can potentially respond to increasingly amorphous and novel subject matter. The inclusion of non-traditional marks in Canadian trademark legislation represents an opportunity for mark owners to protect subtle elements of their brands. It is an area of the law we should keep a close eye on in years to come.

[1] Mark Edward Blankenship Jr., “With Eyes to See and Ears to Beer: Navigating Multisensory Intellectual Property Rights in The Craft Beer Industry”, (2021) 21:4 Wake For Intellect Prop Law J 397.

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Andrew Masson is an IPilogue Writer and a 1L at Osgoode Hall Law School.

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As a huge fan of science fiction and integrating technology with daily life, a recent Apple patent has piqued my interest. Although Apple seems to be under constant speculation, their patent (US patent 11086143) suggest the highly-speculated with augmented reality (AR) functionality may have legs. This patent is intriguing for three reasons: 1) it suggests they are developing glasses; 2) the lenses may be a universal corrective lens; and 3) the patent suggests AR integration. I believe in the latter because the technology in the patent appears to overcome a significant limitation for developers creating AR headsets.

The Issue

Functionally, without intervention, the human eye cannot simultaneously focus on both a real object and a virtual overlaid object because they exist at different locations. This is known as the .

For example, imagine wearing glasses and then having a virtual image projected onto them while you're looking at something on your desk. Our eyes are only capable of focusing on one thing at a time, so either the real object on your desk or the virtual object on the glasses will be in focus. This has been a the clear distinction between reality and the digital image breaks users’ immersion. Additionally, . Until the vergence-accommodation conflict is resolved, it is unlikely that AR functionality will be successfully incorporated into daily wear items like the highly-speculated Apple Glasses.

The Solution

��������’s patent outlines an “electrically modulated optical material”, referred to as “lenses” for simplicity, composed of multiple layers of liquid crystals. The patent suggests that the lenses would be capable of continuous independent adjustment for each eye, while also allowing for different portions of the lens to have different phase profiles and fixation points. This patent is not the first time that liquid crystals have been described in this way to . However, I believe Apple has differentiated itself from the prior research based on its dual application of corrective lenses and an AR system.

The Cherry on Top

Although I find AR glasses interesting, I think they would be a niche market. However, creating glasses that can primarily function as a daily prescription glass will drastically increase public interest and adoption rate. This patent suggests that Apple recognizes this, and the technology’s main concern appears to be in the vision correction component. AR was only found in one section where it was only mentioned in two sentences. Time will tell if Apple revolutionizes the glasses industry by creating a near-universal prescription lens or if this technology is bound to the same fate as . The Apple Glass has the potential to be the next major step in wearable tech and several other patents filed by Apple suggest they have significantly invested in development around glasses (e.g., , , ). However, as I said previously, Apple is notorious for rumours about new technologies and is constantly filing patents that may never emerge. Nonetheless, it appears they are at least exploring glasses as their next tech innovation.��

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Ericsson Inc. and Telefonaktiebolaget LM Ericsson ("Ericsson") against Apple Inc. ("Apple") in a federal court of the United States on October 4, 2021. Ericsson requests for a declaration that the license rate ($5 per handset or $2.5 per low priced handset) of its 5G patent meets the fair, reasonable, and non-discriminatory ("FRAND") commitment, together with an award of costs and legal fees.

The FRAND commitment is a voluntary agreement between the standard-setting organization and the holder of a standard-essential patent ("SEP"). ��SEP is as a patented invention that is essential to the use of an industry standard. Ericsson's 5G patent in this dispute is an example of SEP that can be used by anyone else as long as they pay a reasonable price for licensing. Meanwhile, Ericsson has committed itself to the European Telecommunications Standards Institute to grantlicenses on its SEPs on FRAND terms.

In the , Ericsson argues that Apple has strategically devalued SEPs and reduced royalty payments. Based on the announced by Apple in 2019, Ericsson alleges that Apple publicly requests patent owners to prove their patents are essential, infringed, valid, and enforceable under Apple's discretion. Ericsson also claims that Apple has artificially increased the transaction cost of licensing by requiring the option to examine, value, and license each essential patent, so that patent owners will be forced to agree on royalty rates lower than FRAND rates. Additionally, Apple has tactically asserted that the SEP owners should base their royalty rates on the smallest salable unit ("SSPPU"), which has been rejected in practice.

As one of the world's biggest manufacturers of smartphones, Apple has been frequently involved in negotiation and litigation regarding the patent licensing of cellular technology. Back in 2015, Apple sued Ericsson during a patent licensing negotiation, but in which Apple agreed to pay a portion of its iPhone revenue to Ericsson. In April 2019, to settle their litigation disputes with a payment from Apple to Qualcomm.

With a leading position in cellular technology, Ericsson is also an active player in the patent wars. In May 2021, and ended their disputes on 5G patent licensing under FRAND. Moreover, in , the U.S. Court of Appeals for the Fifth Circuit affirmed that Ericsson's 4G SEPs complied with its contractual commitment to FRAND terms. The court also confirmed that the FRAND commitment does not require a royalty rate based on the SSPPU.

Following the legal action against Apple, that the company had made a significant early investment in research and development, and the fair royalty rate from patent licensing was crucial to ensure its innovation investment and the continuous success of standardization. This statement echoes the , which is utilizing its patent portfolio in support of business objectives to safeguard and monetize research and development investment.

As a promising mobile network technology and standard, 5G brings . Global patent negotiations and litigations follow the growth and commercialization of 5G. For instance, and the Chinese smart device company Oppo have actively brought many legal claims against each other over 5G patents in different jurisdictions. Aside from disputes regarding cellular technology, that the patent litigation over 5G would cover other technologies such as the internet of things.

In terms of SEP enforcement, the European Union has taken the to create a fair and balanced framework for licencing SEPs, planned to take effect in the fourth quarter of 2022. In the United States, President Biden signed an this July, calling for consideration on whether the policy statement on remedies for SEPs needs revision. However, given the uncertainty surrounding FRAND policies in various jurisdictions, whether courts will favour SEP owners over license holders ��is unpredictable.

Litigation costs may cause Ericsson and Apple to follow their previous approach and settle their legal disputes by agreement. If not, Apple may have difficulty prevailing in its lawsuit because of the persuasive precedent set in the litigation between HTC and Ericsson. Meanwhile we may expect that 5G patent disputes among major competitors in this field will continue to increase worldwide.

Shuang Ren is a 3L J.D. Candidate at Osgoode Hall Law School, enrolled in Professor David Vaver’s 2021-2022 Intellectual Property Law & Technology Intensive Program. As part of the course requirements, students were asked to write a blog on a topic of their choice.

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Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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In August, Apple made headlines by . These new features are purported to expand protections for children through modified communication tools, on-device algorithm learning within , , and , and Search . Although protecting children as a vulnerable group should be of utmost importance to all, many security experts find some of these proposed changes troubling as they may undermine the company’s longstanding reputation in privacy preservation and enable future security .

Over the years, Apple has cultivated a strong reputation as a One of their core values and s is that After all, their security and privacy designs are so powerful that Apple allegedly can’t access encrypted user data—. In 2015, Apple CEO Tim Cook that while issues such as national security are important, Apple would not implement any technology which malicious actors could misuse as a backdoor to encrypted user data. Now, in 2021, ��������’s ironclad encrypted system has one exception.

As one of the changes, Apple intends to introduce photo-scanning technology for all users to identify any Child Sexual Abuse Material (CSAM). This well-intentioned technology is already widely used online to identify known explicit materials, including terrorist propaganda and other violent content. Some consumers worry that all their private images will be scanned in search of illegal content; however, Apple is not proposing that. The technology scans for the “” of a file and matches it to a known hash. If a certain threshold of known CSAM is found, barring false positives, then law enforcement is contacted. Strangely enough, Apple has noted that users can opt to disable photo uploads to iCloud, expressing that CSAM is only identified within their servers, and not on users’ devices. Some experts interpret this as

Some security experts expressed strong s over modified communication tools for children. Apple alleges that device software will detect any explicit content (not hashes) within a minor’s Messages conversations—a feature that can be turned on or off by a guardian. This will alert a parent if their minor has received any image that is flagged as explicit. This seems appropriate to allow some supervision to protect vulnerable children from online predators; however, the algorithms currently used to detect explicit images are . It is widely known that benevolent, non-sexual content, particularly , is consistently To add to this, child advocates worry about the possibility of minors in abusive households being monitored by such a faulty and algorithm.

Though is not a new concept, these changes will suddenly affect billions of consumers. It’s been reported that when a child, like any other user, experiences negative behaviour online, they . However, there is currently no way to report messages within ��������’s Messages application. . After causing a tremendous stir in both the privacy and child advocacy communities, Apple that Messages scanning would only apply to those under 13, not teenagers, and have attempted to offer limited clarity on the new technologies.

Despite the changes, . Children need to be protected and prioritized in terms of technology experience, but their privacy matters too. It will be interesting to see the roll-out of ��������’s polarizing changes, particularly how they will affect ��������’s reputation and ecosystem security and if Apple will introduce any more changes moving forward as it responds to community concerns.

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In September 2020, Cub Club Investment LLC (CCI), the company of Katrina Parrot, an African American businesswoman, in Waco, Texas against Apple for copyright infringement and trade dress infringement, for copying her racially diverse Emojis without a licence or her consent. In July 2013, CCI registered the copyright to its diverse set of emojis with the US Copyright Office. In 2014, Ms. Parrot launched the application iDiversicons®, which allowed users to select emojis of five skin tones. Later in 2014, Ms. Parrot began discussions with two senior members of Apple about introducing the idea of diverse emojis into Apple products, which included how to develop and improve the emojis. These discussions ended when Apple decided to create their own diverse emojis. They were released on Apple systems on April 9, 2015, after which iDiversicons® experienced a decrease in sales.

The potential success of CCI’s copyright infringement lawsuit is likely quite low. cannot protect facts, concepts, ideas, or methods of operation. Instead, it is used to protect the way that these things are expressed. This means that the idea of creating racially diversified emojis cannot be protected. CCI’s argument would then turn to the expression of this idea – however this argument will face its own challenges.

Emojis depict an actual thing; whether it be a person, object, or symbol, these things are well-known and have certain distinguishing features. For example, to create a realistic thumbs-up, there will be the commonalities of a clenched fist and an upwards facing thumb no matter who or which platform depicts it. There are only so many variations of the thumbs-up shape and design by which emojis can distinguish themselves. The in different platforms – Apple, Google, Samsung, etc. – illustrates this concept. This means that protecting the use of a generic ‘thumbs up’ emoji will be difficult unless the two are virtually identical – and in , it does not look like they are. There are variations in colour, shading, and shape between the emojis of iDiversicons® and Apple.

The also states that, “��������’s actions also significantly harm innovation and America’s progress in diversity and inclusion… The significance of ��������’s wrongdoing is amplified by the fact that ��������’s willful actions target the creative works of the very community CCI seeks to support and include through iDiversicons® emoji.” It is surprising that Apple, as a company who has committed to working on and improving their initiatives, did not address the numerous letters to Apple, asking for recognition of CCI, ���پ�������������DzԲ�®, and Ms. Parrot’s role in the development of the diverse emoji. It will be interesting to see how the court, and hopefully Apple themselves, respond to this claim.

Sarah Raja is a JD Candidate at Osgoode Hall Law School. She is a IPilogue contributing editor and was a fellow with the IP Innovation Clinic.

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What is the "Partnership on AI", and who are the Partners?

The “Partnership on AI” is a not-for-profit��platform to support best practices in the development of Artificial Intelligence.��, , , and are the founding partners. These companies are industry leaders in the development of artificial intelligence, drones, and enterprise technologies.

������’s Watson AI in recent years for its ability to research and compile relevant information at super-human speeds. Watson has the potential to fundamentally change the nature of industries reliant on intelligent research. DeepMind, Google’s AI development office, when its “learning” AI was able to beat world champions at the ancient logic game��Go. The scale of processing needed to calculate moves in Go is astronomically greater than that in chess, marking a distinct shift in the capabilities of computing since IBM's .

Why should we be concerned about AI?

These computers are examples of how computing is already capable of information processing exceeding that of humans, in some areas. Sam Harris' TED Talk argued “if intelligence is just a matter of information processing, and we continue to improve our machines, we will produce some form of superintelligence.” At the same time, he argued, we have so little understanding of how to constrain such an intelligence and “we have no idea how long it will take us” to determine that.

We should be afraid of this paradigm. Artificial intelligence, if incorrectly implemented, .��The extreme example Harris offered was that “a few trillionaires”, benefitting from the exponentially improved productivity of AI, “could grace the covers of our business magazines while the rest of the world would be free to starve”, as the result of AI eroding jobs and networks of economic exchange. The fear in this example is not that artificial intelligence would become malevolent—as has proposed it may—but, instead, that it would be so much more intelligent and capable than humans, and, by relative measure, ��intellectually, we would be to it what ants are to us.

What does the Partnership propose to do about this?

The and of the Partnership on AI respond to some of Harris’ concerns. The organization states its mission is to ensure the maintenance of, “ethics, fairness, inclusivity, transparency and interoperability, and privacy” in the development of artificial intelligence.

The organization intends to bring together experts from a broad range of fields to respond to the implications of AI in relation to economics, social science, finance, public policy, and law.

The organization’s tenets include: “to ensure that AI technologies benefit and empower as many people as possible”; “maximize the benefits and address the potential challenges of AI technologies”; and, “working to ensure that AI research and engineering communities remain socially responsible, sensitive, and engaged directly with the potential influences of AI technologies on wider society”—these suggest that this organization understands and empathizes with the concerns of Harris and others, related to AI.

What does this mean?

It remains to be seen if this organization and the oversights it vows to provide will prove sufficient to mitigate the potential threats and issues raised by Harris. Concerns are already being raised related to the and Elon Musk (of , , ) from the agreement.

��������’s Siri personal assistant and Tesla Motors’ cars are two of the highest-profile artificial intelligence applications on the market. Both companies stand poised to play a major role in the development of AI. It remains possible that these companies could join the “Partnership”, however, both Apple and Musk are known for their history of independence in the tech market. If these developers choose to remain independent, this could seriously undermine the authority of the "Partnership" and affect the ability for the AI development 'industry' to self-regulate.

It is also worthwhile to consider that the "Partnership" is rooted only in American businesses, which presents problems insofar that it does not adequately account for the emergence of new AI developers��in countries outside of the United States - China, or India, for example. As well, in an extreme case, the centralization of such AI development singularly in the United States could contribute to Cold War-esque tensions, which Harris warned his audience during his talk.

The Manhattan Project for AI?

Harris' Manhattan Project analogy is significant. The Manhattan Project brought together many of the world's greatest scientists and mathematicians to construct the atomic bomb, all with the purpose of ensuring that power did not fall in to the wrong hands - Nazi Germany - during the Second World War. For its intents and purposes, the project succeeded. The bomb was built and it was used to end the war. However, as history proved,��despite the positive intentions of the project, it ultimately contributed to further evils as the impetus for the beginning of the Cold War. Albert Einstein, who , later regretted the creation of the device.

If AI were to go the way of the atomic bomb, that is, result in disastrous consequences despite our best efforts to regulate it, this author believes that fact should be cause for concern. While the functionality of AI remains in question as developers continue to seek greater and greater cognition from their machines, this may be, as Harris argued, a critical point in our history.

Christopher McGoey is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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