Today, building brands solely on the promise of a different product or service has become unsustainable. Any “new and improved” feature or benefit is quickly eclipsed by competitors. Consequently, brands signal category superiority not through rational claims, but by reinforcing a distinct persona — a “ness” comprised of distinguishing traits and behaviors that form an ownable brand essence difficult for competitors to replicate.
It’s rare that a day goes by without news of the impact artificial intelligence (AI) is having on our lives, for better or worse. While AI has many proven beneficial applications, outside my expertise, there is a concerning trend emerging in my field. As someone who has built my career creating and protecting brand equity, I’ve witnessed an increasing number of disputes that are based on mimicry of distinctive brand identities without permission. Traditional trademark protection cases now share courtrooms with proceedings based in the digital realm, dramatically changing both the playing field and the rules in brand infringement cases. As a branding professional who has seen my share of industry evolution over the years, it is something that I have been asked to weigh in on with more and more frequency.
To understand AI’s influence on brand infringement, one must go back to what I refer to as Branding 101. Historically, brands earned status by making or doing something that was relevantly different and more effective than the competition. It might be a formula to make clothes cleaner, teeth whiter, insurance cheaper, cars more fuel efficient, or to relieve headaches faster. When litigation arose, supporting rational claims was relatively straightforward, typically involving one brand infringing on another’s product, R&D practices, or marketing tactics.
Today, building brands solely on the promise of a different product or service has become unsustainable. Any “new and improved” feature or benefit is quickly eclipsed by competitors. Consequently, many companies now create brand stories not on “what” or “how,” but on “who,” — their brand identity. Brands signal category superiority not through rational claims, but by reinforcing a distinct persona. This isn’t merely a name or a logo, but an authentic way of being — a “ness” comprised of distinguishing traits and behaviors that form an ownable brand essence difficult for competitors to replicate.
Consider Apple-ness. You don’t need to see the logo to recognize Apple’s presence. The minimalist architecture, sleek product designs, the user-friendly interfaces of packaging and operating instructions immediately signal the brand. Similarly, IKEA stands apart from traditional furniture and home goods stores with its bold blue and yellow Scandinavian motif and a build-it-yourself warehouse efficiency. Nike’s aggressive typography and “Just Do It” ethos make it instantly recognizable even without the swoosh. Shopping the supermarket aisle, you don’t need to see the name to distinguish the familiar red and white cans of Campbells soup, or make out the word “Kraft” when buying mac and cheese for the kids. It’s the smiley noodle on the well-known blue box that signals the brand’s identity.
Of course, brands have always had personas. From the elegance and everything-luxe of Tiffany & Company, to the whimsical nature of Geico and its gecko, to the golden arches and red and yellow palette of, yes, you know. But as achieving competitive advantage through product differentiation has diminished, companies increasingly rely on their brand identity to stand out — and herein lies the troubling implication of AI. We’re witnessing more incidents of mimicry — rogue entities attempting to steal a brand’s authentic identity, actions that go far beyond just emulating logos. From copying graphic and aural elements to domain squatting and social media impersonation, digital brand infringement poses growing challenges for legal practitioners. These violations can harm brand reputation, confuse consumers and lead to financial losses, not to mention loss of valuable, long-established brand equity.
Given that brands have been dealing with “knock-off” issues for as long as there have been brands, legal professionals have had precedents on which to base their cases. And, they’ve generally relied on the experience of brand management experts to add credibility and bring industry context to their defense strategies. With the fast and furious expansion of AI, however, both the legal community and the branding industry are being required to essentially build the plane while flying it when it comes to the litigation of digital deception. Legal experts are adapting existing laws — stretching traditional fraud, defamation and consumer protection laws — to cover developing AI technologies. They are creating new frameworks, crafting specialized regulations, specifically targeting AI deception, like deepfakes and voice cloning. Setting new standards for cases, courts are beginning to establish what reasonable precautions people and companies should take regarding AI-generated content.
On the brand side of the aisle, branding professionals are also quickly learning what it takes to carve out a role as an expert witness in digital deception proceedings. To prove credibility with courts, this means establishing technical expertise and demonstrating a clear understanding of both traditional brand management and AI technologies. From one business category to the next, it requires the ability to draw analogies — connecting AI deception to long-standing precedents in traditional trademark and copyright infringement to help courts apply existing frameworks. Perhaps most significantly, brand professionals serving as expert witnesses in cases of AI litigation are determining how to provide documentation of harm. In other words, leveraging their understanding of the industry to quantify concrete financial and reputational damage from AI deception through metrics like lost sales, consumer confusion and brand equity measurement.
As someone who has spent a career building and protecting brand equity, I believe AI’s impact on brand protection deserves greater attention in legal discourse. Given that digital activities are inherent in the category’s toolbox of tactics and practices, the field of brand management is especially impacted by the many ensuing changes. Since formal legal precedents are still developing, both legal and branding experts will only continue to help shape how courts approach cases in the future, essentially contributing to the creation of new legal standards. For this reason, it’s important to understand how professionals in brand management would bridge the gap between the branding expertise and legal principles required to strengthen defense strategies in today’s infringement cases.
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This article originally appeared in Law.com and The Intellectual Property Strategist, a Law Journal Newsletters publication that provides a practical source of both business and litigation tactics in the fast-changing area of intellectual property law, including litigating IP rights, patent damages, venue and infringement issues, inter partes review, trademarks on social media – and more.