Protect Your Brainchild

What was originally designed to encourage innovation by rewarding the people who create technological advances, the U.S. patent system has become a big mess. Wade into this surprisingly interesting mire to learn how to save this important institution.

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The legal world is buzzing about AI and its use for all kinds of things, including generating logos, text, and other things people would normally want to register for copyright or trademark protection. I'm particularly nerding out over these issues, because my master's degree project involved training of artificial intelligence systems. Rights to AI-generated content, and to content made on creative platforms, aren't always easy to understand, and they have a big impact on how you can use it and if and how you can protect it.

There's no doubt AI is incredibly useful for generating content, though there is still no substitute for a real human author or artist. But what rights do you have to what it creates for you? Can you use it in the ways you want to?

Keep in mind the generators are trained on existing material, including things that are protected by copyright and trademark law and registration and patents. There have been some court decisions on this precise topic, but the law is not completely settled. However, there are some certainties and principles of law that can guide you.

AI-assisted programs, like online logo generators, aren't straight AI tools like ChatGPT. Instead, they provide templates tweakable using AI. If you're using an online logo generator, such as the one in Canva, a very popular online program for creating all kinds of visual projects, or Logo.com, you need to look at the license terms of the software. Canva and other logo generators are licensing the use of their product and the generated logos in it to you. You'll almost certainly see language that says you cannot apply for copyright or trademark registration for those logos, and that Canva and whoever they licensed the clip art, photos, etc. used in those generated logos retain the ownership to that original art and do not give you a license to use it exclusively. Even when you make a "new" creation with those elements, they still belong to Canva and/or whoever licensed them to Canva.

I made a logo for Bob's Burgers for selling burgers on Tailor Brands' logo maker website. Their terms say I own full commercial (note they don't say "exclusive") rights to it and can apply for trademark registration for it (through the, naturally, even though they aren't lawyers and will just copy whatever you provide them into the application and submit it whether it's appropriate or not). Well, they're right, I can apply, but registration surely won't be granted. For starters, Bob's Burgers is already a trademark belonging to someone else. Second, they had me pick one of 20 graphics for use as part of the logo. That means in no way is that graphic element going to be unique to my logo. The lack of exclusive rights here is fatal. These generators also don't address other issues that can lead to refusal to register a trademark. usually you won't be given the rights needed to have ownership or apply for registration, but even if you are, your logo could still be refused copyright and trademark registration for other reasons.

If you use another kind of AI tool to create a logo, like Canva's AI tools or DALL-E, the platform doesn't claim any ownership rights, including copyright ownership, to the output. That doesn't mean you're in the clear for ownership and registration, however. Some of the elements in the output may be identical to or similar enough to work made by others that it would be infringement to use it without proper credit to and licensing from them.

Copyright

I asked DALL-E to make some logos for me for use in this post. I've seen enough stock graphic elements when doing trademark and copyright searches to know that the crown elements and scales of justice elements are likely to be highly similar to or identical to crown and scales designs owned by Getty Images or some other entity or artist. That means not only is it possible I do not own exclusive rights to those elements, it is also possible I would be infringing if I use them commercially (I'm using them educationally here, so that's ok).

The US Copyright Office has issued some very helpful guidance about copyright ownership of AI-generated works in the US. The general gist is this: copyright only protects works made by humans. AI isn't human. The Copyright Office views the human prompts that generate AI output as akin to instructions to a commissioned artist where the AI determines how the instructions are carried out. In such cases, the output is ineligible for copyright ownership or registration.

If, however, a human takes AI output and selects, arranges, or modifies it in a creative way the work may qualify as a work of human authorship that can have copyright protection. There's a catch, though. Any parts that came from the AI are excluded from that ownership and protection. Only the human-authored parts can be protected.

Trademarks

The United States Patent and Trademark Office (USPTO), is also working on handling the influence of AI on trademarks and patents. There's no question AI has helped make trademark and patent searches much more efficient, but what happens when AI is involved in the creation of the trademark for which someone is requesting protection?

As with copyright, AI-generated logos are subject to the terms and conditions of the generator regarding whether the user can use them commercially or apply for trademark registration. This is why I ask trademark clients who generated the logo and whether they have all necessary rights to apply for registration. Human or AI-created, if you don't have the proper rights to ownership or use, you don't have the proper rights to apply for trademark registration. Of course some people apply anyway, whether they know this or not, and some applications get approved. That doesn't mean all is ok, however. If the AI service retained the rights and sees you using the mark commercially, they will likely take action to have your registration cancelled and against you for infringement and violation of terms of use. Just because you know someone who has gotten away with it so far doesn't mean it's legal or ok. Like speeding.

AI generators don't care if they produce infringing material. They don't have the sophistication yet to generate a logo that for sure wouldn't definitely infringe on someone else's if you used it. That means you have to take whatever it gives you and do your own research on it. Run the logo it creates, and distinct parts of it, through a reverse image search on Google and see what comes up. It's really no different than doing the same searches you'd need images you or an artist you hire create. Those logos I had it create for me could absolutely be infringing on something another law firm is using. The standards for non-infringing and registrable use of an AI-generated trademark are the same as for a human-generated trademark.

Be Careful What You Ask For

One more thing to consider is that your prompts to the AI generators could be used against you in infringement cases. If you asked for something that looks like the Starbucks logo, rather than just asking it to design a logo for a coffee shop, that would weigh on the side of what it created being infringement.

AI isn't perfect. You can't trust it, at least not yet, to give you results that won't cause trouble for you. This isn't limited to logo design. It applies to anything it generates for you. You may also be surprised at what limits there are to the non-AI content you create on sites like Canva and Promo Republic.

Beyond Logos

Copyright

Any creative work you have AI assist you in creating is subject to the same copyright issues as a logo AI helped create. You need to see what the terms and conditions of the generator permit. You also need to determine the extent to which AI was the creator and to which you were the creator. You may remember the case a few years ago about whether a monkey who took a selfie held the copyright to the photo. Because the monkey isn't human, the court held it couldn't own the copyright, so the poor little monkey couldn't make any money to buy treats by licensing the photo to calendars.

If AI creates your image, music, or text, you don't have the copyright to that work. You'd have to do something to transform it, and you'd still only own the copyright to the parts to which you contributed any creativity.

As with logos, any creative work you use the work of others to create, even on a site like Canva that you might think gives you a license to use whatever you create however you like, is subject to specific licensing terms. Those terms depend on how you're going to use the content and will vary significantly from a flyer you create for a block party or garage sale, to a classroom worksheet, to an advertisement for your business. It's annoying to comb through the terms and conditions on those sites, but if you are going to use any of what you create for a business or other commercial purpose, you are running huge risks not doing so. If you aren't sure, find out by contacting them or by consulting an intellectual property attorney.

Trademarks

If you have AI generate a business name, product name, slogan, etc., as with logos your rights and ownership, and therefore ability to use them commercially and receive trademark registration for them, depend on the terms and conditions of the generator. You will need to have proper searching due diligence done to make sure you won't be infringing on someone else's trademark rights. Search the names and slogans it gives you to see if something identical or similar is already in use for similar goods or services.

Remember, the AI generator doesn't care if the slogan it generates will get a refusal from a trademark examiner for "failure to function" as a trademark because it's too common of a phrase, or that 20 other companies are already using the slogan it generated for your hand cream to market their eye creams and lip balms. The AI is a tool, not a solution, and it certainly isn't a lawyer well-versed in the nuances trademark law. Not yet, anyway.

Patents

In 2020, over 80,000 utility patent applications involved AI, and nearly 20% of all utility patent applications these days involve AI in some way. One of the biggest issues with AI and patents is whether AI can count as an inventor, and if so, to what extent, and how does that affect patentability of the invention? A case in 2022 held that an inventor must be human, but this isn't 100% settled law.

If the AI did help with the invention, can the parts of the invention it didn't help with still be patented, or does the AI involvement render the entire invention unpatentable? What if the part it helped with isn't essential to the invention? What if it is?

There are other issues as well. For something to be patentable, it can't be something someone with general knowledge in the field of the invention would find obvious. Given the depth of training of AI in so much of the content on the internet, its knowledge can far surpass a human's in scope, so does that make many more things obvious and therefore unpatentable?

In early 2023 the USPTO asked for public comment on AI assistance with inventions to help it advise government rulemakers. If you're using AI to help you with an invention, you need to work with a patent attorney well-versed in current law and thought about AI and inventorship so you can receive good guidance on patentability, filing an application, and handling any issues the USPTO brings up about the use of AI with the invention.

There Is So Much More to AI and IP!

There are a host of other AI-related issues with intellectual property, such as whether you can keep your work from being used as training for AI generators. If you'd like me to do some posts on those or go into more depth on things I've touched on here, please let me know! DM me on social media or email me at info@kingpatentlaw.com.

I'm fascinated by AI, and I have a good understanding of the various ways it can be trained. The speed at which it is improving is fascinating and sometimes a little scary. It's amazing what it can do. It's not perfect, though, and like any tool, it can be used poorly or intentionally misused. I hope this post has given you a better understanding of some of the limits and issues involved with using AI and other programs for generation of logos and other material.

Intellectual property sounds as dry as can be, but it’s actually very interesting. It’s at the heart of the global economy and the center of a dispute over what should belong to the people who create things, from poetry to pharmaceuticals.

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Trademarks and the Doctrine of Foreign Equivalents: Infringing Trademarks in Different Languages

Roger Bora: Former U.S. Patent and Trademark Office Attorney, International Intellectual Property, Trademark, Copyright, and Brand Attorney

Roger Bora Trademark Titan discusses intellectual property including trademark trademarks copyright copyrights patent patents trade secrets brands branding domain name

Kelley Keller (@KelleyKeller) is an Intellectual Property Attorney & Education, and founder of The Keller Law Firm. She’s also the creator of Innovation to Profits, an online educational resource for anyone with creative, valuable ideas.

This legal-focused conversation discusses the types of IP, how portfolios must be handled, competition in the age of the Internet, Fair Use, and other legal matters important for creative pros in business.

Show Notes & Links

• F.U.D.
• Intellectual Property, a definition
• IP is “controlling the movement of knowledge throughout the marketplace” ← Click to Tweet
• Types of IP: Brand Names/Trademarks, Copyrights, Patents, Trade Secrets
• The Coca-Cola formula, the world’s most famous Trade Secret
• The Portfolio, a body of work for a creative pro
• Work-for-hire relationship (common for employees)
• Employer owns the work, employees need permission
• Non-compete and non-solicitation agreements are governed by Employment Law, at the State level
• “An ounce of prevention is worth a pound of cure.” ← Click to Tweet
• Brand X
• As for your original logo, you have responsibility to protect and to police
• The Digital Millennium Copyright Act (DMCA), and its Takedown Notices
• The US Copyright Act of 1976 says, essentially, the moment you create something, you own the copyright (assuming it’s copyrightable (original, independent, etc.)) 
• The difference between a “trade name” and a Trademark. The trade name is the legal name of your business at the State level; Trademarks are marketplace identities, and must be cleared on the Federal level. 
• 1099 and W-9 forms, Tax forms for outside contractors
• Nissan Motors v. Nissan Computer
• Captain Fantastic Faster Than Superman Spiderman Batman Wolverine The Hulk And The Flash Combined
• Apple Computer v. Apple Corps Records aka “Why aren’t the Beatles on iTunes?”
• US Olympic Committee v. Olympic Gyro
• Colleges Tell High Schools Logos Are Off Limits
• Agents and officers seize more than $4.8 million in fake NFL merchandise and seize 307 websites during ‘Operation Fake Sweep’
• Washington Redskins Mascot Controversy
• Washington Redskins Change Their Name To The D.C. Redskins
  
• Redskins defend name, ask federal court to overturn trademark decision
• USPTO Design Codes
• Lady Gaga stole the song “Judas”, claims singer/songwriter

Tools

• USPTO.gov, the website for the US Patent & Trademark Office, where you can do a search.
• Behance, which hosts portfolios
• Copyright.gov

Techniques

• Be proactive with new contracts and agreements; get an attorney to review 
• Set up Google Alerts for brands/trademarks
• Hire a junior staffer to search for your brand online

Get The Episode

• Download The Busy Creator Podcast, episode 36
  (MP3, 58:54, 28.3 MB)
• Download The Busy Creator Podcast, episode 36
  (OGG, 58:54, 48.1 MB)

Subscribe to The Busy Creator Podcast on iTunes