In an AI-driven world, brand protection and intellectual property rights are evolving rapidly. This article explores the key insights from Lawline’s CLE course, "Make Your Mark: Building a Brand in the Age of AI," presented by Wendy Heilbut and Savannah Merceus of Heilbut LLP, covering trademarks, copyright considerations, and global IP protection strategies.
Building a strong brand starts with selecting a legally protectable trademark. The strength of a trademark is assessed based on two factors:
Trademark Spectrum and AI’s Influence
Trademarks are categorized based on distinctiveness. Fanciful and arbitrary marks are highly distinctive because they either use invented words or have no direct relation to the product or service. Suggestive marks require a consumer to make a mental connection between the brand and its offerings. Descriptive marks, which explicitly describe the product or service, may only gain protection if they acquire secondary meaning. Generic terms, such as “Computer” for a tech company, cannot be protected as trademarks.
With AI-generated name suggestions, businesses may struggle to ensure uniqueness, as AI models may produce overlapping brand names based on common training data. This could lead to increased conflicts in the trademark registration process, making distinctiveness a greater challenge in the AI era.
AI is significantly enhancing the trademark clearance process, allowing for more in-depth searches across various databases to detect conflicts. However, AI’s ability to generate similar brand names poses risks of:
AI-Generated Specimens and USPTO Compliance
Trademark prosecution faces new challenges with AI-generated specimens of use, which provide evidence that a mark is in commerce. The USPTO has flagged concerns over:
Recent disciplinary actions highlight the risks. In re Wei Tao Chen, an attorney was suspended for filing thousands of suspect trademark applications, many containing questionable specimens. Attorneys must now exercise heightened due diligence when submitting evidence of use.
AI’s role in brand building extends to content creation, including logos, slogans, and marketing materials. However, copyright law presents unique challenges regarding AI-generated works.
Can AI-Generated Works Be Copyrighted?
The U.S. Copyright Office requires human authorship for copyright protection. AI-generated works may not qualify unless substantial human modification is demonstrated. Key takeaways from recent USPTO guidance include:
Businesses relying on AI tools for branding must ensure their outputs are legally protectable by incorporating sufficient human creativity.
Intellectual property offices worldwide are adapting to AI’s impact on branding and trademark law. The UK Intellectual Property Office (UK IPO) conducted a comprehensive review on AI’s influence on intellectual property, emphasizing the importance of ongoing evaluation of trademark and copyright laws. Meanwhile, China’s National Intellectual Property Administration (CNIPA) has implemented strict regulations to combat bad-faith trademark filings, which could be used to target AI-generated mass applications.
Canada’s Intellectual Property Office (CIPO) introduced an AI-powered trademark assessment tool designed to flag application deficiencies at an early stage, allowing for proactive corrections. Similarly, Australia’s IP Office launched TM Checker, an AI-driven tool assisting applicants in assessing the availability of trademarks before filing.
While these AI-driven tools enhance efficiency and streamline administrative processes, they also introduce concerns regarding algorithmic bias and inconsistent examination outcomes across jurisdictions. As AI continues to influence trademark registration and enforcement, legal professionals must stay informed about evolving regulations and procedural changes worldwide.
Given the evolving IP landscape, businesses and legal practitioners should adopt the following strategies:
For a deeper dive into AI’s impact on brand protection, watch the full course "Make Your Mark: Building a Brand in the Age of AI," presented by Wendy Heilbut and Savannah Merceus of Heilbut LLP, on Lawline.
The content of this article is provided for informational purposes only and does not constitute legal advice.
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