Emerging technologies are significantly transforming the fashion industry. Whether it’s unique fashion pieces offered as nonfungible tokens, such as Dolce & Gabbana’s Collezione Genesi NFT (details), or events like Metaverse Fashion Week 2023 (theVerge), the intersection between fashion and technology is growing. Generative artificial intelligence is expected to significantly boost the sectors’ operating profits in the coming years (McKinsey).
One such AI tool at the heart of the matter is the New Black, which helps fashion designers generate brand names, slogans, bags, among other things (New Black AI). A recent case highlighting legal implications in this context is Getty Images (US) v. Stability AI (details). The key question lies in how trademark laws will apply to outputs from generative AI tools.
A fashion designer who uses generative AI to produce and commercialize products that infringe existing trademarks could be held liable under a direct infringement theory. But a generative AI company might evade accountability for merely generating the potentially infringing output since it may not meet the commercial use requirement (USCode15USC1114). Instead, it could be held accountable under an indirect theory of trademark infringement. However, proving this might be difficult, especially if the AI company has implemented intellectual property safeguards.
These challenges point to the need for current legal frameworks to adapt and address the unique issues posed by AI technology. To provide clarity and ensure legal compliance, courts and lawmakers will need to interpret and perhaps even redefine trademark infringement in the context of generative AI in fashion design.
Article by Alesha Dominique, an intellectual property brands partner at Norton Rose Fulbright and Ani Galoyan, an intellectual property brands associate at Norton Rose Fulbright. (Alesha Dominique Bio), (Ani Galoyan Bio)
This article is based information available from Bloomberg Law’s original article, which can be found here.