Artificial Intelligence has revolutionized how brands create, communicate, and market their products.
However, generative AI tools have also fundamentally altered the landscape for trademark owners.
While the core legal principles for trademark protection remain the same, the sheer speed and scale at which AI tools can create brand- related content demand a significantly more proactive strategy from businesses to protect their brands.
1- Generative AI tools can lead to trademark infringement.
Trademark infringement exists, when an unauthorized third party uses a trademark that is identical or confusingly similar to a registered or protected mark in connection with goods or services.
Today generative AI platforms can lead users to easily and invertedly create logos, slogans, color schemes, brand names, trade dress, and even entire marketing campaigns, replicating or confusingly similar to those of already existing brands.
This all can happen without the intention and knowledge of the human user of the AI platform. Irrespective of this fact, subsequent commercial use of that AI-generated content can expose the users to liability for trademark infringement.
2- AI generated content may cause trademark dilution
Another likely outcome from the use of generative AI to assist with generating brand related content, could be trademark dilution. Trademark dilution occurs when a third party harms the reputation of a famous mark by using a mark that is similar to the famous mark in a way that reduced the distinctiveness of the famous mark.
Unlike the infringement, it is not necessary to have consumer confusion for the harm to their identity to occur.
There are two main types of dilution: blurring (when a famous mark is being associated with completely unrelated goods and services) and tarnishment (when a famous mark is used in relation to goods and services that harm the famous brand’s reputation).
Without the knowledge and the intent of the human user, AI generated content resembling a famous mark and used in relation to a third-party’s goods and services may dilute the distinctiveness of an existing famous mark or tarnish it.
This creates implications for both AI users and brand owners.
AI users should carefully review all AI generated content before using it and should subject it to the same level of scrutiny as human-created design.
All AI generated brand-related content must undergo a rigorous clearance process to ensure it does not infringe or dilute existing marks. Companies should educate their internal marketing and product development teams on the risks of using AI tools for branding or content development purposes.
Brand owners on the other side, should be more vigilant and proactive in the protection of their brands and should adopt continuous trademark monitoring so they can identify potential infringement or dilution at an early stage.
Brands can use AI to assist them with automated brand-monitoring services combining image-recognition and text-matching. They can also scan websites in real-time to identify potential infringements and misuse.
You need to protect your brand identity and also be sure you are not harming someone else’s! That is why we are here. Reach out to Sutter and let us handle your trademark in the era or AI.
