By Ken Smith

Generative AI can be a helpful tool for businesses, including start-ups, when it comes to creating or maintaining brand identity. Years ago, companies like Pepsi or Nike had to hire graphic designers and marketing professionals to create and perfect their logos and slogans. Today, a new business can generate branding ideas in seconds using AI. However, the rise of generative AI brings several legal challenges. For example, who owns the rights to an AI-generated logo or slogan? Generally speaking, a person or company cannot hide behind the fact that a design or phrase was created using AI to avoid potential liability for trademark infringement. Can AI-generated content be trademarked? Yes, as long as the content is distinctive and not confusingly similar to existing trademarks. This raises one major concern with the use of generative AI: AI may not recognize similarities between its generated content and an existing trademark, potentially leading to a “likelihood of confusion” among consumers. While the legal landscape is evolving, courts continue to use the traditional trademark infringement analysis to determine whether the use of AI content constitutes unlawful infringement. A company or individual may be held liable for trademark infringement for AI-generated content if the plaintiff can demonstrate:

1. Ownership of a valid trademark
2. Unauthorized commercial use or a similar mark, and
3. A likelihood of consumer confusion

To mitigate these risks, individuals and companies should carefully review AI-generated content and conduct trademark searches through the USPTO website to identify potential conflicts. Ultimately, using AI to develop a corporate brand can be an excellent tool, but it still must be looked at with a critical eye.