6 Key Takeaways | A Trademark Practitioner’s Guide to Using AI: Guidelines, Use Cases, and Ethical Considerations

Fair Use in the AI Trenches: Courts are closely examining how AI training on copyrighted or trademarked content may not all constitute fair use, focusing on transformativeness and proof of market harm.
AI Outputs: Risks for Infringement: The utilization of AI-generated outputs may lead to direct or contributory infringement liabilities if end-users create infringing content and the platform enables or contributes to it knowingly.
Generative AI and Trademark Issues: Generative AI might produce content that confuses consumers, dilutes famous marks, or lead to misleading attributions, opening up avenues for dilution, false endorsement, and trade dress claims.
EU AI Act: Regulatory Guidance: The European AI Act acts as a benchmark for global AI regulation, with strict rules regarding disclosure of synthetic content and severe penalties for non-compliance.
U.S. AI Law: Regulatory Evolution: The U.S. is experiencing rapid regulatory changes with new laws like the TAKE IT DOWN Act and other bills targeting deepfakes and foreign procurement, reflecting a tightening regulatory landscape.
AI and Privilege: Confidentiality Challenges: AI-generated documents might not enjoy automatic protection under attorney-client privilege, an issue highlighted in the United States v. Heppner case.

6 Key Takeaways | A Trademark Practitioner’s Guide to Using AI: Guidelines, Use Cases, and Ethical Considerations | Kilpatrick