Can You Trademark Something That's AI Generated?

Can you trademark something that’s AI generated, is a question a designer asked me recently.

He believed it wouldn’t be possible to trademark something AI generated because it wouldn’t have been created by a human.

However, he was confusing copyright and trademarks.

With intellectual property, it’s important not to confuse what the various IP rights protect and require.

While the copyright position of AI generated works may vary from country to country (here’s an article I wrote which is a starting point, if you’re interested to know more), the trademark position is clearcut whichever jurisdiction you’re in.

Trademarks are the signs that identify your business and distinguish you from other businesses.

The starting point with a trademark is arguably not its creation but its adoption for use, or proposed use in connection with goods and/or services. 

It really doesn’t matter how the trademark comes into being…

So, if you create something like a mascot with the help of AI there is no issue whatsoever for your business to use and trademark it.

Nor is it necessary to prove that the asset is distinctive.

What’s distinctive about the 3 stripes that Adidas has made famous as its trademark? The EU courts have described them as ‘utterly banal’.

The key issue when designing something for trademark use is to avoid descriptiveness.

Specifically you won’t be able to trademark something that’s too descriptive of the business’ products and services.

For example, say you run a pizza café and decide to create a mascot that looks like a pizza. There you may well have problems registering the trademark regardless how distinctive your pizza mascot looks like.

It would be too descriptive of your products/services to qualify for trademark status.

As I mentioned last week, creating a strong, protectable brand requires joined-up thinking whereby IP is considered during the creative process – be it a name or visual or auditory sign that you’re designing.