Interpreting EU trade mark law in the era of AI-driven behavioural advertising and digital marketplaces

The impact of artificial intelligence (AI) on trade mark law has recently drawn increasing scholarly attention, with commentators exploring the challenges posed by this technology across a variety of domains – from its use by trade mark offices and in adjudication processes, to its broader implications in AI-driven behavioural advertising and the Digital Services Act (DSA). This study contributes to the legal analysis, from the point of view of the EU legal framework, of two specific scenarios: (a) the use of third parties’ trade marks by operators of online shopping platforms – including online marketplaces – that rely on AI systems either to recommend purchases to consumers or to execute purchases on their behalf; and (b) the use of third parties’ trade marks by online marketplace operators to promote or recommend competing commercial offers to users. The first scenario challenges the continued relevance of the “average consumer” as the legal benchmark for assessing both the existence of a like lihood of confusion and the liability of online shopping agents. The second scenario, which has emerged in case law across several jurisdictions, raises interpretative ambiguities that warrant closer examination. These concern the extent to which existing jurisprudence ac commodates the pro-competitive potential of such practices, while still safeguarding the rights of trade mark holders. This study offers interpretative clarifications and also considers the harmonised EU rules on misleading advertising.