Gen-AI and Trade Marks: Ascertaining Liability from a UK and EU Perspective

Abstract

Over recent years, generative AI (gen-AI) technology has infiltrated society, from AI text generators being viewed as the evolution of search engines to the ever-increasing AI generation of image and media content by online users. Yet the latter often contains signs that are identical or similar to signs protected as trade marks. This Chapter addresses questions concerning the potential liability arising from this new blended form of user generated content (UGC) within AI systems, both at the training and output stages of AI generation, from the EU and UK perspective. The chapter contributes new knowledge on AI user and AI provider liability through the lens of three legislative regimes: first, through trade mark law, drawing upon the UK Trade Marks Act 1994 and the Trade Mark Directive 2015/2436; second, from the perspective of the E-Commerce Directive 2000/31 and the Digital Services Act 2022/2065, ascertaining potential platform liability for AI providers; and lastly, under the recently enacted EU AI Act 2024/1689 and the ‘inferred obligations’ for respect for intellectual property rights, and in some cases, under the Revised EU Product Liability Directive 2024/2853.