Artificial Intelligence is designed to mimic human intelligence in carrying out human-like tasks such as generating texts and images etc. But will artificial intelligence ("AI") be able to replicate the intangible creations of the human mind? Regardless, the ability of AI such as CHATGPT to create slogans, logos and texts is fascinating in view of its convenience and efficiency. If a person uses AI to create a trademark, then it will be eligible for trademark protection provided that it meets the criteria of distinctiveness and source identification which are the essentials of a valid trademark.

However, the chances of AI generating content that is identical/deceptively similar to pre-existing trademarks cannot be ruled out. Since AI is trained using data that is freely available on the internet, it could, unknowingly, come up with a name/logo/image that is identical/deceptively similar to a pre-existing trademark. Here, the issues that would surface relate to questions of ownership and liability.

Use of Traditional Tools v. AI Tools in Trademark Creation

When we create a trademark (a word or a logo) using traditional software tools like Google, we constantly need to use human effort and intelligence to search and compile the information into a unique content. In contrast, when we use AI we can simply feed the prompt to the tool after which it will generate the desired data. Despite the huge difference in the requirement of human efforts, there is no difference when it comes to ownership and liability.

Ownership of the content created using either traditional software tools like Google or AI tools like ChatGPT, both remain with the user. Open AI's Terms of Use clearly states that it facilitates creation but the resultant work is owned by the user. Similarly, if a trademark created using Google or ChatGPT infringes on someone's trademark rights, the liability falls on the user. Open AI's usage policies confirm this and state that users are accountable for how the content created by AI is used or any other legal issues that could arise.

In the case of Google France Sarl v. Louis Vuitton Malletier SA [(C-236/08) [2011] Bus. L.R. 1], Louis Vuitton contented that Google's AdWords system allowed unauthorized use of its trademarks which violated the European trade mark laws and consequently, it had caused significant economic loss and damage to Louis Vuitton's reputation. It was held herein that Google would not be liable for trademark infringement unless they took an active part in the keyword advertising system.

Supporting this standpoint, the Delhi High Court in the case of MakeMyTrip India Private Limited v. Booking.com B.V. & Ors [CS(COMM)268/2022] held that the mere use of trademarks as keywords cannot be held to be infringement when there is no confusion or unfair advantage.

However, if AI developers fail to detect infringements or are negligent, they can be held liable as evidenced in the case of Cosmetic Warriors Ltd v Amazon.co.uk Ltd [2014] EWHC 181 (Ch), wherein Amazon was held liable for misusing trademarks that were hyperlinked to redirect to websites that did not contain the branded products as specified.

Herein, we observe that although liability generally falls on the user in cases of infringement, the AI developers/providers can also be held liable under circumstances where their involvement in the infringement or negligence in preventing such infringement is active.

How to protect your trademarks from getting infringed/misused by AI generated content?

It is possible to protect your trademarks against misuse/infringement by AI through simple steps:

• You can invest in AI detection tools that will help you to stay alert with regard to potential threats that could emanate from AI. Some of these include GAN (Generative Adversarial Network), Adobe's Content Authenticity Initiative, or even image search services like Google Images can help identify AI generated images.
• Registering your trademark will help establish a documented claim of ownership which gives you a strong legal stance if at all your trademark is misused by AI.
• In your website's terms and conditions, you can clearly indicate that your images are registered trademarks and are not permitted to be used for AI training.

The incredible advancements in Artificial Intelligence have led to ample opportunities alongside challenges in the intellectual property sector. While the current laws do offer some degree of protection, there is a pressing need to implement stronger legislations and policies to address the countless situations where AI could undermine IP Rights and how the positive aspects of AI can be utilized without compromising on IP protection. These changes will eventually help us strike a fine balance between human creativity and artificial intelligence.