The Fourth Industrial Revolution has brought a drastic change in the market and how it operates. There is barley anything in the society which is not touched by the changes brought by this revolution, and Intellectual Property Rights and Trademark specifically stands as no exception. Trademark as a part of IPR has twofold purpose to solve[i], it helps businesses to distinguish themselves from other businesses and another purpose it caters to is to help consumers to identify the business on which they rely and trust. The arrival of Artificial Intelligence has made one task of trademark easy, at least in the online world by way of algorithms functioning upon the big data, it is assisting consumers to have a narrow and refined search based on their search history and other records to throw specific result which is relevant to consumer leaving less scope of confusion[ii]. At the same time businesses are using AI to create logo’s and trademark which is a matter to be delved into, the legality of AI-generated trademarks, requirements for it to be distinctive, the problems arising to the ownership of the same and if all of this is answered then what is the probability of it getting registered by the Trademark Office.
Trademark and its purpose
A sign, word, phrase, or symbol that identifies and sets one company’s goods or services apart from another is called a Trademark. As a type of intellectual property, it confers exclusive usage rights and legal ownership of the mark. Trademarks shield companies against rivals who use confusing names, logos, or slogans and avoid consumer confusion. They are essential to branding and marketing since they guarantee that customers will recognise and trust company’s goods and services.
There are two types of trademarks: Registered (®) and Unregistered (™). Trademark Registration offers more robust legal protection. As long as they are being actively utilised in trademarks are perpetual, unlike patents and copyrights, it could be renewed by the proprietor after every 10 years, that is the term period of trademark. At the same time unregistered trademark does not mean that your right is completely dissolved you’re still open to exercise the right as provided by the common law. Trademark Act basically codifies the common law right and one must never forget that Passing off rights i.e. the common law right are considered to be superior than that of registration rights.[iii]
Numerous well-known trademarks, such as Apple, Nike, and Coca-Cola, have grown to be significant business assets that aid in a company’s ability to dominate a market. In order to make money, trademarks can also be purchased, sold, or licensed.
Businesses may protect their brand identification, stop counterfeiting, and keep customers loyal by obtaining a trademark. Businesses make significant investments to prevent trademark infringement because of their commercial significance. In the end, trademarks are essential for establishing brand value and guaranteeing honest competition in the market.
Role of AI in Trademark Regime
Now that we have understood what trademark is and the purpose it serves, the next thing we should understand is that how AI enters the picture from the perspective of Businesses. In the era of AI, companies have started using AI based tools for the purpose of achieving innovative ends i.e. creation of trademark and the logos for their businesses. The doubt which arises is that are AI-Generated Trademarks registrable, the quick answer would be in affirmative as there is no bar of originality in getting a trademark registered but then another point of concern arises is the discussion as to overlapping of trademark and copyright. This indicates to the point that if we are to concern ourselves with some logo created by AI to get trademark registered over the same we should also have copyright over the same. We cannot find solution to this AI-Generated trademark conundrum without answering the relevant question as to who holds copyright over the AI-Generated content.
Who owns copyright over AI-Generated content?
An attempt was made in a prior blog[iv] to answer the same. The legislator and the judiciary both have yet not dealt with the topic. It’s still open to interpretation and the doubt will keep on existing until and unless the judiciary or the legislator delves with it specifically and comes out with a clear cut law as to declare who holds copyright over AI-Generated content.
Ownership over AI-Generated Trademark
As mentioned earlier Trademark does not establish the requirement of originality but rather has other criteria, which does not much entwine itself with the copyright over the mark. But for the businesses in order to stay out of legal entanglements in relation to utilization of AI-Generated logos should go through the terms and policies of the AI service providers. Some of them would be-
- Restraining from using the entire mark generated by AI as it is, businesses should add some human efforts to make it distinctive and not a complete reflection of AI-Generated mark.
- Some AI service providers retains the right over the work they have created, so if used for your businesses later on the AI service providers could come and knock on your doors to claim rights over them.
Ways to increase possibility of getting AI-Generated Trademark registered
- Make alteration to AI-Generated logo- as mentioned earlier this would be the best way to increase chances of getting AI-Generated logos registered, i.e. to add some human efforts and make some alteration to the logo.[v]
- Conduct a thorough Trademark Search- A good trademark search to make sure that there is no already registered trademark which is identical or similar to the AI-Generated one.
- Documenting the whole process- Documenting the whole process from the prompts given to AI to the human intervention should be documented in case of future issues.
To have an outright affirmative answer to the question as to whether AI-Generated Trademark can be registered would be a fallacy until and unless Court or the Legislator takes a clear stand on the same. But at the same time until then there exists no barrier for getting the same registered but to make sure to take few precautions as provided earlier would be a right choice.
Even if AI software provides innovative branding solutions, humans still play a significant part in securing trademark rights. Businesses may successfully file and defend their AI-designed trademarks by making human amendments to AI outputs and doing thorough trademark searches.
The future of AI-generated trademarks will be determined by the evolution of intellectual property laws as AI continues to advance. For businesses looking to protect their brands in the digital age, awareness and initiative will be crucial.
Author: Devanshu Dey, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
References-
[i] https://kincaidlawkc.com/trademark-law-fundamentals-purpose-value-and-core-concepts-of-trademarks/
[ii] https://sandalawoffices.com/the-intersection-of-ai-and-trademarks/
[iii] S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683
[iv] https://www.khuranaandkhurana.com/2024/12/30/copyright-in-the-spectrum-of-artificial-intelligence/
[v] https://www.thebusinesstoolkit.com/are-ai-generated-logos-trademarkable/?srsltid=AfmBOorhFlH-6j9FOjUnQvLONLP83vEm5F0mcOq1w82r0UkABd5ecA8y