Algorithmic Branding: Is it Possible to Trademark a Logo Created by AI?

In such a world where artificial intelligence (AI) has evolved from mere support to participating in actual creation, a new legal frontier is arising: Are logos completely created by AI eligible for trademark protection?

Startups, designers, and even some companies are now using AI tools like Looka, Designs.ai, and Midjourney to design branding assets — logos included — in seconds.

While this innovation is transforming the design landscape, it also raises a monumental challenge for Indian trademark law: where is the ownership when the mastermind behind logo creation is an AI? And can it be trademarked under Indian law?

Within the strictures of Indian trademark law, registrable marks have to be distinctive, used in commerce, and above all, created by a legal person. Artificial intelligence does not fit within the category of a legal person. Therefore, if there is no creator who can assert authorship, can the logo really meet the requirements for protection?

This article explores the nexus of algorithmic innovation and Indian trademark law, taking into account how existing legal paradigms deal with machine-generated designs and whether there is a need for a legal evolution.

[Image Sources: Shutterstock]

How AI is Designing Logos Today

Design tools driven by artificial intelligence have come a long way from simple digital assistants to full-fledged creators. Tools like Looka, Canva's AI-powered logo maker, and Midjourney are capable of designing logos with little human intervention, sometimes with merely a few keywords to start.

These systems are powered by:

• Machine learning algorithms

• Generative adversarial networks (GANs)

• Huge collections of past visual designs

Although the end result appears to have been formed by the human hand, the whole process is completely automated. The user selects a style, enters brand details, and the AI generates a logo. But with such ease comes a highly relevant legal question: Who owns the right to the product?

What the Trademark Act, 1999 Says About ‘Authorship’

As per the 1999 Trade Marks Act, it defines a trademark is defined as a mark which is:

• In a manner that could perhaps be graphically represented, and

• Able to differentiate between the products or services provided by one person and those

provided by others.The law does not require authorship by a human being. So theoretically, you can register an AI-generated logo, as long as:

• The applicant claims ownership,

• The mark is unique and is utilised in commerce,

• The mark does not resemble others deceptively.

But there are legal issues involved in the case of defining originality and ownership. If an AI generates a logo with minimal human touch, can it be deemed an individual intellectual property? Indian courts, particularly in copyright cases like the one in Eastern Book Company v. D.B. Modak (2008), have noted that creativity shall be human authorship.

If this is the reality of the world of trademark law, AI-generated logos could face legal concerns in the future.

The Global View: How the World Is Responding

United States

The USPTO has unequivocally stated that human authorship-free works, such as AI-generated works, are not copyrightable. The AI authorship idea was strongly denied in the case of Thaler v. Perlmutter (2022). However, trademarks remain registerable if used in commerce as long as a human makes a claim of proprietorship.

European Union

The EUIPO is receptive to the acceptance of logos created by AI, as long as they are original and are being used in commercial activities. The question of ownership is avoided by declaring the applicant, whether an individual or organisation, as the owner of the work.

WIPO

The World Intellectual Property Organisation (WIPO) acknowledges intellectual property created by artificial intelligence as being complex. WIPO, in its 2021 session on the convergence of IP and AI, noted that there is a necessity for global coordination and a potential for new legislation to address the creativity that comes from non-human sources.

This international variation emphasises the fact that numerous regions are grappling with uncertainty, and India is definitely part of this problem.

Ownership and Liability: Can You Sue Over an AI Logo?

What if someone steals your logo, which you created using AI? Can you report an infringement complaint?

Yes, whether or not you are registered, through passing off, for example, you will need to be able to show:

• That you have the logo

• It has been used in business activities,

• The foregoing copy is deceptive or misleading.

The problem is that most AI platforms have ambiguous or restrictive Terms & Conditions. Some platforms assert the right to reuse outputs, whereas others explicitly mention that they only reserve exclusive rights when you purchase a premium license.

Though it can be registered, your ownership can be challenged if your contract with the AI platform does not grant you complete intellectual property rights. This is a legal as well as contractual problem, especially in India, since the courts have not yet ruled in such cases.

What India Needs: Legal Reforms or Workarounds

The issue of authorship by non-human is left unaffected in Indian law insofar as it relates to copyright law and the law of trademark. Although it is a fact that some trademarks produced by AI have become registrable, their enforceability in a court of law remains questionable.

Ideas for change:

• The Trade Marks Act needs to be amended to provide clarity on the authorship and ownership definitions within the context of AI.

• At the time of registration, it is necessary to maintain the authorship and originality declaration.

• Be a transparency champion in artificial intelligence software, particularly in their training materials, to prevent future snares of plagiarism or derivative work.

• Develop an independent system for intellectual property management produced by machines.

Artificial Intelligence has progressed from being an instrument and has begun to take shape as a creator in its own right. This development carries with it monumental legal problems to the fundamentals of trademark law in India, specifically regarding authorship, originality, and ownership. While the Trade Marks Act of 1999 does not explicitly prohibit the registration of logos designed by AI, it also fails to throw much light on their legal status.

Lacking clear legal directions, AI-created trademarks will be open to future controversies, particularly ownership and enforcement issues. Firms will have to take preventive measures to protect their AI-created brands, their legality and marketability until clear guidelines or court decisions are issued.

Intellectual property is more and more being shaped by algorithms, necessitating rapid growth of the legal system.

Author:  Aastha Parasrampuria, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

1. The Trade Marks Act, 1999 (India) – Bare Act on India Code

2. WIPO, “Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence”, 2021 – WIPO AI IP Report

3. U.S. Copyright Office, “Policy Statement on Works Containing AI-Generated Content” – USCO Statement 2023

4. Thaler v. Perlmutter, U.S. District Court, D.C., 2022 – AI authorship ruling

5. EUIPO Guidelines for Examination of EU Trademarks – EUIPO Guidelines

6. Designs.ai, Looka, and Canva AI – Platform Terms of Use