Business Law Journal

Much has been written about the intersection between AI and copyright law, including on this Blog, but the trademark enforcement implications for brand owners and the infringement risks for unwitting infringers utilizing AI have comparatively been given short shrift.  As content creators, publishers, and online platforms continue to test and stretch the boundaries of copyright law with AI-created content, however, risks abound for trademark owners and AI-utilizing businesses alike.  Beyond the highly publicized copyright questions of authorship, derivative works, and substantial similarity for AI-generated works, as AI-generated content continues to flood the internet, the boundaries of traditional trademark law are also being tested in real-time.  From deepfakes and image manipulation to supposedly “original” content with confusingly similar or “inspired” logos, trademark owners, AI-users, and courts are all similarly wrestling with questions pertaining to AI’s impact on trademark law, such as when does use of AI-generated content for a user cross the line into infringement, and who is responsible when AI-generated content infringes your trademarks? 

Trademark Infringement in the AI Era  

Trademark infringement arises when someone uses, in connection with their goods or services, in commerce, a word, term, name, symbol, or device that is likely to cause confusion, mistake, or to deceive as to the affiliation, connection, or association of the junior user or the origin, sponsorship, or approval of their goods, services, or commercial activities. 

Generative AI platforms can create logos, slogans, brand names, and even full marketing campaigns with targeted copy and images in neck-breaking speed.  While this opens the gates of creativity for the non-creative and saves time, it also creates increased risks of infringement for the AI user who may be unwittingly infringing a third-party’s trademark without any human intent to infringe.  

For example, the AI platform may accidentally generate content that is coincidentally confusingly similar to a pre-existing third-party trademark.  Or even more troubling, the AI platform may be intentionally infringing another trademark—but without the human user’s knowledge—by referencing or taking “inspiration” from a third-party trademark already within the AI platform’s knowledge base or skimmed from the internet.  In either case, use of the AI-created content by the oblivious user to promote their products or services in commerce may give rise to trademark liability for the user of the AI-created content.

Trademark Dilution Risks for AI-Created Content

But the trademark risks do not stop at direct infringement.  Even when AI-generated content may not directly infringe another trademark, the AI-generated content may still dilute famous trademarks.  Trademark dilution occurs when a third party uses a mark that is similar to a famous trademark, in a way that reduces the distinctiveness or harms the reputation of the famous mark.  Unlike traditional trademark infringement, dilution does not require a likelihood of confusion.  Rather, the relevant inquiry is whether the association arising from the similarity between a mark and a famous mark weakens the association with the senior user’s primary goods or services or harms the senior user’s brand reputation. 

There are two types of dilution in trademark law: (1) dilution by blurring and (2) dilution by tarnishment.  Dilution by blurring occurs when a third party uses a famous mark or mark similar to a famous mark in connection or association with different goods or services than those of the senior trademark owner.  Even if no one is confused or believes the famous brand is making, offering, or approving the junior user’s goods or services, the famous mark or brand’s singular identity may nonetheless be diluted.  Dilution by tarnishment occurs when a third party uses a famous mark or mark similar to a famous mark in connection or association with products or services that harm the famous mark brand’s reputation (e.g., using the mark in connection or association with products or services that are offensive, obscene, or low quality).

AI-generated images, logos, slogans, brand names, advertising, or marketing materials may create risk for dilution claims if they utilize famous marks or marks similar to famous marks in connection with the AI user’s goods or services, even if those goods and services are unrelated to the senior user’s primary goods or business and even if it does do not create a likelihood of confusion.  This can occur with or without human prompting.  The generative AI platform may utilize famous marks, or create similar marks that intentionally trade-off a famous mark, for use in connection with the user’s genuine goods or in derogatory or obscene content that may harm the reputation of the famous brand, potentially opening the door to a dilution claim.  A well-meaning employee or independent contractor trying to be too clever in developing content for a business may also prompt a generative AI platform to create similar marks that intentionally trade-off famous marks for commercial gain, raising additional risks arising from a finding of willfulness.  (While there are certain exceptions and trademark defenses that may apply, such as parody and descriptive or nominative fair use, these defenses are fact-specific and beyond the scope of this blog article.)

To safeguard and protect against unwitting infringement or dilution, it is imperative that AI users monitor and review in detail all AI outputs before using them in commerce.  Businesses should also carefully vet vendors to ensure that in paying for design services they are not also buying a potential trademark lawsuit, whether the result of AI or human-created content by the vendor.  Businesses utilizing AI-created content in their marketing development and advertising copy should also carefully document human oversight of AI platforms and tools in the creation of the AI-generated content that the business intends to use.

Implications and Tips for Trademark and Brand Owners

Trademark and brand owners also face the risks of doing nothing in the face of infringing AI-created content.  Failing to police and enforce your trademarks—especially in the age of AI—can have lasting consequences for your brand and your ability to enforce and protect your rights of exclusivity in the future.  When unauthorized or AI-generated uses of a mark go unchallenged, courts may view this as acquiescence, weakening future claims of infringement or dilution.  Moreover, widespread misuse can erode the distinctiveness of even the strongest brands, increasing the risk of your mark becoming generic or losing your rights of exclusivity.  For famous marks, inaction against AI-generated similar marks or false attributions to your mark may also undermine future claims of fame and dilute the brand’s commercial impact.  Trademark and brand owners should act now to monitor and enforce their marks across both human and AI-generated content—or risk ceding control over the identity that defines them.

AI will not respect the line between original, distinct creativity and actionable infringement, and neither should your trademark enforcement strategy.  Trademark owners should take steps now to protect and safeguard their brand and the goodwill they have earned with their trademarks.  Initially, to maintain and strengthen the protectability and effective enforcement of your trademarks, brand owners with common law trademarks should consider federal registration.  But registered and common law trademark owners alike must stay vigilant and continue to protect their brand from all threats and attacks, including AI-generated content.  Brand owners should consider developing a protocol to monitor and police potential infringement and enforce your trademark rights early and often.

 Conclusion

As generative AI becomes increasingly embedded in creative, marketing, and design workflows, trademark law is entering uncharted territory.  AALRR has a dedicated group of attorneys on its Intellectual Property Team with the experience and expertise to protect and vigorously enforce your trademarks and defend you against claims of trademark infringement or dilution.  Attorneys on the Firm’s Intellectual Property Team can also assist you with federal registration of your trademarks.  If you have questions about trademark protection or infringement of your trademarks, contact the author or another member of the AALRR Intellectual Property Team.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2025 Atkinson, Andelson, Loya, Ruud & Romo