An IP Lawyer’s Perspective: Can Logos Created with Generative AI Infringe Trade Marks?
Experiencing generative AI for the first time can feel a lot like wielding a magic wand. We weigh in on the risk of trade mark infringement for AI generated logos.
The surging uptake of generative artificial intelligence (AI) tools in marketing presents both new opportunities and challenges for trade mark and brand owners. A branding process which might have formerly taken months or weeks with a graphic designer can now occur in minutes.
Harnessing AI’s potential, businesses can accelerate and scale the branding process by generating unique logos tailored to specific industries. However, while offering unprecedented potential, AI branding tools require careful navigation to avoid the potential for trade mark infringement and the dilution of established brands.
“AI branding tools require careful navigation to avoid the potential for trade mark infringement and the dilution of established brands”
Is it magic or is it a whole lot of data mashed together?
Experiencing generative AI for the first time can feel a lot like wielding a magic wand. Prompts, like spells, can unlock an incredible range of results, seemingly limited only by the skill of the prompter-spellcaster.
But rather than creating new material from the void, AI tools are instead making an educated guess based on what they've seen before in giant lakes of data. They are more like colossal mixing bowls rather than wands, super-powered copycats rather than true creators.
“AI tools are colossal mixing bowls rather than wands, super-powered copycats rather than true creators”
Thus the need for caution from an intellectual property law point of view. Imagine generative AI as a giant mixing bowl filled with every logo, symbol, and design ever created. When you prompt generative AI to create a logo, it is like dipping a ladle into this bowl and scooping up a combination of ingredients. While it might come up with something new, there's always a chance it could accidentally grab a handful of elements that are already trade marked, like the distinct swoosh of a famous athletic brand or the iconic bite taken out of a fruit logo.
The Difference between Trade Mark and Copyright Infringement
With trade marks, mens rea (your intention) is not a consideration. The creation of a logo (resembling a registered trade mark that is already on the trade mark register) could lead to potential legal liability, irrespective of the creator's intent.
This is unlike copyright law, where independent creation of a similar work to prior copyrights generally avoids infringement claims. For trade marks, the register is sacrosanct – no matter how you created your logo, if it happens to be similar to something already on the register, infringement is a possibility.
Weighing the Risk of Infringement for AI Generated Output
If you decide to go down the route of creating your logo with a generative AI tool, these are the considerations.
The most important thing that you should do is to ensure that your branding is unique. Once you settle on a word/phrase/logo that you wish to use for your business, the next step is to ensure that no one else is using it (and hence that you are not infringing on an existing mark). In Singapore, the Intellectual Property Office of Singapore (IPOS) maintains a public database on which trade mark searches can be performed. Images can be uploaded to the search engine to see if there are any similar existing trade marks.
The issue with doing this on your own is that without the requisite trade mark expertise and knowledge, you run the risk of an insufficiently comprehensive technical and legal analysis. Trade mark similarity is a complex issue and involves a comparison of the visual, aural and conceptual aspects of the trade marks as well as an inquiry into the likelihood of confusion vis a vis the marks. The safest route here would be to engage a specialist trade mark law firm, such as yours truly.
“Trade mark similarity is a complex issue and involves a comparison of the visual, aural and conceptual aspects of trade marks”
Another tangential consideration is that the issue regarding the ownership of AI generated output/works is unresolved in Singapore - the Courts have yet to weigh in as to who the legal owner of an AI generated work is (The person who prompted the AI? The developer of the AI? The AI itself?).
Bearing this in mind, there is a certain level of risk inherent in using an AI generated output as your brand or trade mark because there is a possibility that you are not the owner of the word/phrase/logo that you registered, causing the registered mark to be vulnerable to attack and scrutiny.
Protecting an Existing Brand/Trade Mark from Potentially Infringing AI Generated Works
Owners of existing brands and trade marks, these are some things that you can do to protect yourself against infringement.
Firstly, register your brand/mark. If you have not registered your brand or mark, and subsequently find out about an infringing mark (whether AI generated or not), you will have no recourse under trade mark law. Instead, you will have to rely on the tort of passing off, which has a much higher burden of proof.
Secondly, ensure that your mark is registered in the appropriate classes. Depending on the goods/services you provide as part of your business and under your mark, the class(es) that the mark should be registered in will differ. To ensure the best protection and coverage, you should engage an expert to help you determine if all your bases are covered.
Thirdly, proactive monitoring is highly recommended. Brand owners should be alert to the possibility of infringement and be prepared to enforce their mark(s) against any unauthorised use. The best way to do this would be to sign up for a trade mark watch/monitoring service - the service provider will monitor the trade mark register and journal for all published marks that might be similar to yours and will flag it to you if there are any hits. We provide this service.
At That.Legal LLC, we understand that intellectual property isn't just about protection, it's about fuelling your creative vision. We go beyond simply defending your rights – we become your strategic partners, working alongside you to unlock the full potential of your ideas.
“Intellectual property isn’t just about protection, it’s about fuelling your creative vision ”
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Disclaimer
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. That.Legal LLC represents neither party in this dispute and is not privy to any confidential information pertaining to the parties. All facts stated herein are compiled from publicly available sources. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of That.Legal LLC accepts or assumes responsibility, or has any liability, to any person in respect of this article.