Let’s Talk About Trademarks (And AI)

I’ve posted quite a bit about the growing legal battles involving AI companies, copyright infringement, and the right of publicity. These are still early days in the evolution of AI so it’s hard to envision all the ways the technology will develop and be utilized, but I predict AI is going to come up against even more existing intellectual property laws — specifically, trademark law.

For example, in its lawsuit against Open AI and others (which I wrote about here), the New York Times Company alleged the Defendants engaged in trademark dilution. To take a step back, trademark dilution happens when someone uses a “famous” trademark (think Nike, McDonalds, UPS, etc.) without permission, in a way that weakens or otherwise harms the reputation of the mark’s owner. This could happen when an AI platform, in response to a user query, delivers flat-out wrong or offensive content and attributes it to a famous brand such as the New York Times. Thus, according to the Times’ complaint, when asked “what the Times said are ‘the 15 most heart-healthy foods to eat,’” Bing Chat (a Microsoft AI product) responded with, among other things, “red wine (in moderation).” However, the actual Times article on the subject “did not provide a list of heart-healthy foods and did not even mention 12 of the 15 foods identified by Bing Chat (including red wine).” Who knows where Bing got its info from, but if the misinformation and misattribution causes people to think less of the “newspaper of record,” that could be construed as trademark dilution.  

There are, however, potential pitfalls for brands who want to use trademark dilution to push back against AI platforms. It’s difficult to discover, expensive to pursue and there can be a lot of ambiguity about whether a brand is “famous” and able to be significantly harmed by trademark dilution. In the New York Times’ case, the media giant has the resources to police the Internet and to file suits; nor should there be any dispute that is a “famous” brand with a reputation that is vitally important. But smaller companies may not have the resources to search for situations where AI platforms incorrectly attribute information, or have a platform visible enough to meaningfully correct the record. Plus, calculating the brand damage from AI “hallucinations” will be very difficult and costly.  Also, this area of the law does nothing for brands that aren’t “famous.” 

Another area where trademark law and AI seem destined to face off is under the sections of the Lanham Act — the Federal trademark law — that allows celebrities to sue for non-consensual use of their persona in a way that leads to consumer confusion, or others to sue for false advertising that influences consumer purchasing decisions. AI makes it pretty easy to manipulate a celebrity’s (or anyone’s) image or video to do and say whatever a user wants, which opens up all sorts of troublesome trademark possibilities.

Again, there are a couple of serious limitations here. For starters, the false endorsement prong likely only applies to celebrities or others who are well-known and does little to protect the rest of us. Perhaps more important (and terrifying), it seems likely that there will be significant issues in applying the Lanham Act’s provisions on false advertising in the context of deepfakes in political campaigns — like, for example, the recent robocall in advance of the New Hampshire primary that sounded like it was from President Biden. To avoid problems with the First Amendment, the Lanham Act is limited to commercial speech and thus will be largely useless for dealing with this type of AI abuse.

One other potentially interesting (and creepy) area where AI and trademark law might intersect is when it comes to humans making purchasing decisions through an AI interface. For example, a user tells a chatbot to order a case of “ShieldSafe disinfecting wipes,” but what shows up on their porch is a case of “ShieldPro disinfecting wipes” (hat tip to ChatGPT for suggesting these fictional names). While the mistake of a few letters might mean nothing to an algorithm (or even to a consumer who just wants to clean a toilet), it’s certainly going to anger a ShieldSafe Corp. that wants to prevent copycat companies from stealing their customers (and keep their business from going down that aforementioned toilet).