AI’s Ability to Copy IP Means More Work All Around—Not Just Legal

Companies, for more than a century, have treated intellectual property as a shield to guard their logos, designs, and names. It essentially was the right to exclude.

That protection is now being tested in both nascent and vexing ways.

Artificial intelligence platforms can dribble out a convincing logo in seconds. It can draft a catchy slogan while you’re pouring your morning coffee. It can even create photo-realistic “products” that look indistinguishable from yours. And it can upload them to global marketplaces overnight.

The problem? The established rules aren’t so fluid and remain the baseline for the test of “what’s what.” That means business leaders, in-house lawyers, and boards of directors are suddenly navigating a new frontier with old maps and reference points.

AI Brand Ownership

When a generative AI tool designs a logo or writes a tagline, who owns the result?

The US Copyright Office has said works created entirely by machines—without meaningful human input—can’t be copyrighted. Trademarks are fuzzier, but the underlying issue is the same: If your brand identity comes straight from an algorithm without further diligence, it may not be protectable. Or it may be based on existing intellectual property.

In practical terms, that means your team could launch a new product with a slick AI-generated brand identity, only to find you can’t stop a competitor from using something nearly identical. Worse, if someone already has that image or name registered, you might not be able to use your own branding.

AI doesn’t sign contracts. If an AI tool generates your company name or logo, it isn’t always clear who—if anyone—owns it. A trademark application requires clear ownership, and murky origins can put your registration at risk before you’ve even ordered business cards.

Legal Hot Seat

For those of us in practice, the risks don’t stop with our clients. The US Patent and Trademark Office has been clear in recent guidance, expunging thousands of applications. As counsel, attorneys are expected to exercise judgment, review the requirements for filings and, in some instances, disclose when AI was used in creating materials.

That means if a client hands you an AI-generated mark, and you file it without asking questions, you may be creating problems—for them and for yourself. It could be unintellectual property.

In April 2024, the PTO issued guidance on the use of AI-based tools, reminding practitioners that while AI may assist in preparing trademark and patent filings, existing rules require human oversight, competence, and candor in all submissions.

It’s the attorney signing the applications and filings, not the algorithm. A bot can generate images, but it can’t vet whether those images infringe on existing marks, nor can it understand context or if the case law is made up. That responsibility sits squarely with the human (and in this case, the lawyer).

Enforcement Dilemma

Trademark clearance has always hinged on avoiding a likelihood of confusion. But when AI systems are trained on massive troves of existing logos, art, and text, they don’t know how to avoid echoing what already exists.

If your AI engine produces a logo that looks suspiciously similar to another similar brand in the marketplace, it doesn’t matter that a machine made the mistake.

Companies developing AI systems are rushing to secure brand identities for their products and services, but the legal framework hasn’t caught up with these technologies.

Traditionally, trademark law assumes, for the most part, a human author with a clear intention to identify goods or services. AI complicates that picture. Courts haven’t faced the awkward prospect of an AI demanding its own cease-and-desist letters, but the trajectory of disputes suggests the question may soon arise.

For attorneys, this is both a professional challenge and possibly a job-security guarantee.

Lawyers must wrestle with thorny issues of distinctiveness, liability, and infringement when AI systems churn out suspiciously familiar branding. But as long as machines keep generating borderline-infringing content, lawyers won’t be short on billable hours.

The AI trademark debate is less about whether the law can adapt (it can, albeit slowly) and more about whether lawyers can keep a straight face while explaining to clients their “unique” AI-generated brand identity is owned by someone else.

What to Do?

If you sit on a board or lead a brand, the conversation about generative AI and IP can’t be delegated to the legal department and forgotten. This is a leadership and policy issue that requires:

• Building cross-disciplinary teams bringing together legal, marketing, and finance from the start.
• Creating clear governance frameworks for when and how AI can be used in brand creation.
• Demanding regular reporting on IP enforcement and counterfeit takedowns.
• Asking your tax advisers how Sections 174 and 197 apply to your AI investments and acquisitions.

Encourage executives and board members to strengthen their own personal brands, because in an era of AI flawlessly mimicking voices, faces, and logos, a trusted human presence is one of the strongest differentiators. Ultimately, IP is the foundation for growth.

For small businesses, trademarks are the foundation of brand identity and customer trust. Without proper protection, your AI-assisted masterpiece could end up unusable, unenforceable, or the subject of an expensive lawsuit.

The bedrock of trademark law is avoiding consumer confusion. Unfortunately, AI tends to produce generic, catchy, or derivative names (because, frankly, that’s what consumers like). When anyone can copy your brand in seconds, touting your authentic story and identity while making sure it’s your story and not someone else’s is how you keep the real thing shining through.

The AI trademark dilemma isn’t about whether the law can adapt. It will, eventually, just like humans. But it’s tougher to calculate how many migraines lawyers will suffer in the meantime.

One thing is certain: As long as AI keeps producing marks that are catchy, confusing, and occasionally infringing, lawyers will remain both indispensable and mildly exasperated.

An immaterial amount of this content was drafted by generative artificial intelligence.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Relani Belous is an intellectual property lawyer specializing in media, brand management, and technology.

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