By Meg Ramsey & The Fortis Trademark Team
In our last post, we examined how AI-generated content can mislead consumers. But trademark law also protects brand owners when confusion isn’t present. This is the realm of trademark dilution—a risk AI amplifies significantly.
What Is Trademark Dilution?
Under the Federal Trademark Dilution Act, 15 U.S.C. § 1125(c), a famous mark can be protected from:
- Blurring: Dilution of the mark’s distinctiveness through widespread, non-confusing uses.
- Tarnishment: Harm to the brand’s reputation through inappropriate or offensive associations.
AI’s Role in Dilution
Generative AI tools can:
- Flood the internet with fake branded products
- Pair iconic logos with violent, obscene, or unethical content
- Create mashups that trivialize luxury brands
Even without confusion, these uses can weaken a brand’s identity or harm its image.
Key Legal Example: Hermès Int’l v. Rothschild, 590 F. Supp. 3d 647 (S.D.N.Y. 2022)
In addition to a claim of consumer confusion, in its causes of action before the court, Hermès also alleged dilution by blurring. The court allowed these claims to proceed, reinforcing that famous marks have protection against dilution by blurring, which AI-generated media could easily accomplish by flooding content-rich applications and sites with fake branded products or trivializing brand mashups that are not protected as First Amendment parodies or artistic commentaries.
Action Steps for Brand Owners
- Register trademarks for use in virtual and digital spaces (Classes 9, 35, 41, 42)
- Monitor for offensive or unauthorized associations
- Pursue dilution claims to prevent long-term brand erosion
In our final post, we’ll offer practical steps to future-proof trademarks against AI-generated risk.
