As generative artificial intelligence (AI) systems become increasingly powerful and widespread, the United States Patent and Trademark Office (USPTO) is beginning to evaluate the legal implications for intellectual property rights and protection. On March 27th, the USPTO and the U.S. Copyright Office jointly held a public symposium to explore the emerging challenges AI presents across the intellectual property landscape.
A central issue is whether AI-generated inventions and creative works meet the current requirements for human authorship and inventorship. Both the Copyright Office and USPTO have issued guidance (here and here) affirming human involvement is still required, but there is some flexibility, especially for patents developed using AI assistance.
During the public symposium, there was discussion around whether extensive prompting could ever constitute sufficient human authorship, what level of “control” over AI outputs is needed, potential certification of ethical “responsible AI” practices, and whether new legislation will ultimately be required.
The symposium also provided an update on over a dozen active court cases dealing with allegations that generative AI tools, like ChatGPT, infringe on copyrights and patents. Most cases have been narrowed to evaluate direct liability for data ingestion under fair use. Key issues include whether verbatim outputs prove the training data contained that work, and the “volitional conduct” requirement for AI providers.
Looking beyond patents and copyrights, there was additional discussion of emerging trademark and publicity rights issues as generative AI models can now create realistic imagery, including using people’s names, likenesses, and personal “trade dress” elements. Panelists examined novel claims like false endorsements.
As the symposium made clear, there is a long road ahead for courts and policymakers to navigate AI’s disruption across the IP landscape. While the legal precedents are just being established, there are broader ethical concerns around aligning incentives for responsible AI development, data privacy, and protecting personal autonomy as AI can replicate individuals’ information at scale. Companies and individuals interested in developing trademarks, especially those using or considering using AI, should consult legal counsel throughout the process of analyzing, developing, applying, and/or registering your trademark (words, images, etc.).
***
We hope this proves useful, please contact Ben Dash (bdash@ofwlaw.com) if you have any general AI policy questions or Kyla Kaplan (kkaplan@ofwlaw.com) if you would like assistance with trademark analysis and registration.
