Artificial Intelligence (AI) is rapidly transforming brand creation, generating slogans, logos, and even coined names. In India, this phenomenon is reflected in increased interest around AI-generated trademarks with businesses drawing on machine learning-generated output for branding purposes. Yet, traditional trademark law—rooted in the Trade Marks Act, 1999—raises critical questions about ownership, enforceability, and validity. This opening section situates the debate within India's legal framework, setting the stage for a detailed exploration of machine learning branding, the distinctiveness test, and Section 9 of Trade Marks Act, 1999 absolute grounds for refusal.
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Legal Definition and Scope of Trademarks in India
Under Section 2(1)(zb) of the Trade Marks Act, 1999, a trademark is defined as a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others. This inherently presupposes a human author or originator behind the creation of the mark. The statutory framework was not conceived with AI-generated works in mind, raising a fundamental issue: Can a machine, devoid of legal personality, be the creator of a protectable trademark?
Related: Intellectual Property
Indian law, as it stands, does not expressly recognize non-human creators. This creates tension in cases where branding elements are wholly or partially generated through machine learning algorithms. Though the applicant of a trademark is usually the business or inpidual using the mark, the originality and creative input attributed to AI still raises novel legal hurdles in establishing distinctiveness, authorship, and enforceability.
Thus, even before reaching the registration stage, AI-generated trademarks must grapple with foundational questions about the mark's source and the intention behind its use, parameters that the current law still associates with human agency.
Registration Hurdles Under Section 9: Absolute Grounds of Refusal
The primary legal obstacle for AI-generated trademarks in India lies in Section 9 of the Trade Marks Act, 1999, which outlines absolute grounds for refusal of registration. The section seeks to prevent the registration of marks that:
- are devoid of any distinctive character (Section 9(1)(a)),
- consist exclusively of marks which may serve in trade to designate the kind, quality, intended purpose, or other characteristics of goods or services (Section 9(1)(b)),
- have become customary in the current language or established practices of trade (Section 9(1)(c)).
When AI is used to generate a brand name or logo, the distinctiveness test becomes especially critical. Machine learning models, especially those trained on large datasets of existing trademarks and descriptive words, are likely to produce output that is generic, descriptive, or derivative—thereby lacking the originality and source-identifying character that Section 9 demands.
Machine Learning Branding vs. Human Creativity
AI branding tools can inadvertently generate marks that resemble or are too similar to existing registered trademarks—heightening the risk of confusion or deception. Additionally, because AI lacks subjective intent or creativity, the output may not demonstrate the "inventiveness" that is often pivotal in overcoming objections under Trade Marks Act, 1999.
Thus, when applicants seek to register an AI-generated trademark, the burden lies in proving that the mark—although machine-created—possesses inherent or acquired distinctiveness, capable of functioning as a badge of origin.
Ownership and Authorship Concerns: Who Owns the AI-Created Mark?
Trademark law in India hinges on the premise that a natural or juristic person is the proprietor of a trademark. But when a non-human intelligence, such as a generative AI model, plays a central role in the creation of a mark, the question of ownership becomes legally complex.
In the absence of statutory recognition of AI as a legal person, Indian law does not permit the AI itself to be named as the proprietor. Thus, the person or entity who commissioned, programmed, or prompted the AI to generate the trademark would typically be considered the rightful applicant. This mirrors the broader legal principle found in Indian copyright and patent law, where human authorship or inventorship is mandatory.
However, challenges arise where the branding agency or marketing department uses third-party AI tools to generate the trademark. In such cases, terms of service of the AI platform and licensing agreements become critical. Some AI tools claim partial or full rights over the output, potentially affecting the applicant's ability to assert exclusive rights in the trademark.
To mitigate risk, applicants should ensure:
- Clear contractual ownership of AI-generated content.
- Internal records documenting human intervention and creative control.
- Evidence that the mark serves as a source identifier for the goods or services in question.
Thus, even if an AI generates a mark, human legal entities must clearly establish their claim of authorship and proprietorship for the purposes of registration and enforcement.
Strategies for Overcoming Distinctiveness and Enforceability Challenges
Given the registration hurdles and ownership ambiguities around AI-generated trademarks in India, applicants must adopt strategic legal and branding measures to ensure protection and enforcement. Below are some key strategies:
A. Evidence of Acquired Distinctiveness
Under Section 9(1) proviso of the Trade Marks Act, 1999, even a non-distinctive mark can be registered if it has become distinctive through continuous use. Businesses can leverage:
- Marketing records showing extensive use of the AI-generated mark.
- Sales figures, promotional material, and consumer recognition evidence.
- Proof of long-standing association of the mark with the applicant's goods/services.
This is particularly useful when the output of machine learning branding lacks immediate uniqueness.
B. Human Refinement of AI Output
Involving human creativity to refine or curate AI-generated content can enhance originality and reduce the risk of objection under absolute grounds. Human intervention also strengthens the applicant's claim to ownership and supports arguments about the mark's source-identifying function.
C. Pre-Application Clearance Search
Since AI may generate content similar to existing marks, conducting a comprehensive trademark search is critical to avoid conflicts under Section 11 (relative grounds). AI tools should be audited to reduce repetition of common or registered marks.
D. Robust Licensing and Contractual Frameworks
When using third-party AI platforms, applicants must review the terms of service, particularly:
- Ownership of generated output.
- Licenses granted to users.
- Indemnification clauses relating to IP claims.
A clearly documented assignment or IP transfer agreement ensures that the legal title of the AI-generated trademark rests with the applicant.
Conclusion
The emergence of AI-generated trademarks in India signals a paradigm shift in how brands are conceived and protected. While the Trade Marks Act, 1999 does not yet expressly account for non-human creation, existing principles offer interpretative flexibility to accommodate evolving technologies. However, hurdles relating to distinctiveness, ownership, and Section 9 compliance require proactive legal and commercial strategies.
Until such reforms materialize, applicants must navigate the current legal framework with legal foresight, technological diligence, and contractual clarity. AI may assist in creativity, but the legal enforceability of trademarks in India remains firmly anchored in human authorship, commercial intent, and distinctiveness of origin.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.