Commercial Awareness Update – W/C 3rd February 2025

LOST IN TRANSLATION – AI TRANSLATORS IN THE LEGAL INDUSTRY

Artificial Intelligence and the Legal Sector

AI has revolutionised the legal sector by transforming lawyers’ work, creating a new area of law and legal experts to navigate such litigation, and streamlining the overall delivery of legal services. One of its key functions is to ensure the quality of translations.

Not only are law firms investing in it to maintain a competitive edge, but the government is also working to implement AI into court and tribunal services for translation and interpretation.

Its use in courts and tribunals

Currently, The Language Shop is responsible for the quality assurance of translation and interpretation services provided in courts across the UK. The company’s director defended the lack of AI use as part of a government inquiry into interpretation and translation services in the public sector.

Critics of this response cited the use of AI in health services as justification for using it in legal services, arguing that the risks taken by the health industry in using technology are far higher than those in the legal sector.

Many large companies integrate AI software, such as DeepL and BeringLab, into their operations from Abbott to Meta to streamline their in-house legal work. Given the success of such endeavours, there is a clear path for AI to move from the private legal sector to the public.

However, as noted by The Language Shop, while efficient, the cost of AI integration strains investors’ pockets. The House of Lord Public Services Committee has also highlighted several key issues with the widespread integration of AI.

Problems with the use of AI in translation

Accuracy: The vast differences between languages can be problematic when dealing with sensitive subject matter, where poorly constructed translations either impute an offensive meaning to the subject or paint an inaccurate depiction of information being conveyed.

Confidentiality: Due to the complexities of data retention in AI, lawyers and clients alike may be apprehensive about using AI due to the sensitivity of the information being exchanged, raising concerns about data security.

Different speech: Regional and international law firms receive clients with unique backgrounds. AI translating speech may not be able to account for differences in accents, dialects, vernacular, volume, speech impediments, clarity of speech and numerous other factors, thus creating multiple opportunities for error.

Broader implications of using AI in translation

The future of human interpreters: While leading AI technologies have made great strides, achieving around 90% accuracy, the value of human intelligence cannot be discounted. In translation and interpretation services, the human element must tactfully handle sensitive subject matter, particularly in family and immigration cases where cultural nuances and body language are essential to meaning.

Performance of AI: As AI LLMs continue to learn and self-improve, this could lead to the reduction, though not the complete obsolescence of human interpreters. However, AI is still in its nascence and issues in its accuracy could be detrimental to the speed at which proceedings progress, costing clients, firms, and the courts valuable time and expense for seemingly trivial errors that snowball out of proportion. It could also lead to miscarriages of justice, stretching the already overburdened court system to its limits.

Lawyer-client relationship: Many clients may have a genuine aversion towards AI, thus raising concerns about informed consent regarding the service they receive and how potential data breaches resulting from the use of AI could impact clients’ trust in their counsel.

The use of AI translations: LLMs can be culturally biased, failing to account for speech differences. Thus, their translations may lack nuance and necessary context. Relying on such output in proceedings could inflame tensions and overcomplicate litigation.

Regulation of AI: The admission of AI-generated output as evidence and its use by the courts must be regulated to preserve legal certainty and fairness and determine where liability lies in disputes. The Law Society has issued a comprehensive AI strategy and introductory guidelines to legal tech to ensure responsible use of the technology.

Law firms and AI translation tools

Informed consent: Law firms must be transparent about their use of AI regarding data retention, privacy policies, protections, and all risks associated with it while giving clients the choice to opt out of its use if they wish both to avoid liability and preserve the sanctity and trust of the lawyer-client relationship.

Liability: AI, whether used properly or carelessly, can still make grave errors, raising questions about liability for detriment caused by it. When obtaining lawyers’ insurance, firms should consider how AI will factor into potential malpractice disputes.

Governance: To avoid malpractice liability at all costs, law firms must use AI cautiously to guard against potential risks. This could include issuing guidelines about its use, providing training to recruits as well as old, regularly updating such information, and taking stringent measures to ensure that the quality of their services is not compromised.

Compliance: As the world continues to decipher AI, the government will likely ramp up its efforts to regulate its use in several industries, including the legal sector. Law firms using their AI or third-party platforms must comply with these regulations as and when they are issued.

AI is more than a passing trend; industries must embrace it to improve the quality and speed of their services. Yet, it is essential to remember that AI is not a replacement for human expertise but rather an aid to optimise their performance.

• By Natasha Saeed Ikramullah

THATCHERS CIDER COMPANY LIMITED

V

ALDI STORES LIMITED [2025]

Thatchers, commonly known for their fruity ciders, brought proceedings against Aldi, the latter widely known as being “like brands, only cheaper”, over its product, ‘Taurus Cloudy Lemon Cider’, which resembles ‘Thatchers Cloudy Lemon Cider’.

The case was heard in the first instance at the Intellectual Property Enterprise Court (IPEC), which ruled in Aldi’s favour. Thatchers appealed, and the case proceeded to the Court of Appeal, with the Court’s decision significant for several reasons.

It was anticipated by commentators discussing whether the courts must protect brand owners against “look-alike” packaging or encourage competition and lower consumer prices.

The case was also significant because the Court could only intervene if the previous judge erred in law or principle or if the prior court’s findings were rationally insupportable, as espoused in Volpi v Volpi [2022].

The facts

Thatchers registered a trade mark for this product in 2020. In 2022, Aldi launched the ‘Taurus Cloudy Lemon Cider’.

Less than five months later, Thatchers brought proceedings against Aldi for trade mark infringement under ss 10(2) and (3) of the Trade Marks Act 1994 and for passing off to the IPEC. The judge ruled in Aldi’s favour, and Thatchers appealed, although they did not challenge the decisions concerning section 10(2) and passing off.

Critical issues

The similarity between the Trade Mark and the Sign

The judge in the IPEC dismissed Thatchers’ claims, stating that “the Sign is the overall appearance of a single can of the Aldi product, not merely one face of it”.

Thatchers contended that the judge erred in two respects: (i) by excluding the repetition of the design on the packaging and (ii) by wrongly treating the Sign as a three-dimensional product.

The Court decided that the Sign is “the graphics on the cans and on the cardboard 4-can pack” of the Aldi product, not the Aldi product itself. It was decided that Thatchers was right and that the judge erred in both respects.

It was also held that “it is necessary to bear in mind the purpose of the assessment of similarity”.

Likelihood of confusion and reputation of the Trade Mark

Thatchers contend that the judge erred by muddling up, or at least failing to clearly distinguish between an intention to deceive and an intention to take advantage of the reputation. In contrast, Aldi submits that these points are “merely infelicities of drafting”, and the judge asked herself the correct question.

The Court decided in favour of Thatchers, relying on the judgment of Kitchin LJ in Specsavers International Healthcare Ltd v Asda Stores Ltd [2012] and Glaxo v Sandoz [2019].

It was held that “an experienced trader like Aldi is presumed to understand its target market and therefore know how the consumers in that market are likely to react”.

Lord Justice Arnold stated that “the resemblance cannot be coincidental” and that Aldi intended to take advantage of the reputation of the Trade Mark.

Unfair advantage

Thatchers argued that “this is a classic unfair advantage by a transfer of image” and “falls squarely within the guidance of the Court of Justice in L’Oreal v Bellure”. On the other hand, Aldi invited the court to depart from this decision.

Thatchers also argued that the entire exercise undertaken by the judge rests upon the unspoken but illegitimate assumption that the other products in the Taurus range achieved sales on their own merits. In contrast, Thatchers contends they benefitted from “riding on the coat-tails of Strongbow”.

The Court decided that Thatchers was correct, and Aldi was “riding on the coat-tails of that mark”.

Further, it was an unfair advantage to Aldi because it enabled Aldi to profit from Thatchers’ investment in developing and promoting the Thatcher product rather than competing purely on quality and/or price and its promotional efforts, garnering the agreeance of Lord Justice Phillips and Lord Justice Falk, thus allowing the Thatcher appeal.

Broader implications

Ultimately, the decision of this case will likely be used as guidance for future cases.

However, Aldi has submitted its intention to appeal to the Supreme Court, which will provide the final decision. More crucially, it might open the floodgates of litigation for brands seeking to bring claims against Aldi.

Whilst the court mentioned Strongbow in its decision, it should be noted that it would not have a cause of action under section 10(3) if it did not have a registered trade mark.

Additionally, Strongbow may have commercial reasons for not taking legal action against Aldi, given that Aldi sells Strongbow products.

*For clarity purposes, ss 10 (2) and (3) of the Trade Marks Act 1994 states:

“A person infringes a registered trade mark if he uses in the course of trade a sign where because the sign is identical with the trade mark and is used in relation to goods or services similar to those for which the trade mark is registered, or the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered, [and] there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark.”

“A person infringes a registered trade mark if he uses in the course of trade [in relation to goods or services] a sign which is identical with or similar to the trade mark, where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.”

• By Tia Wiliams-Brown