In today’s entertainment industry, distinctive voices and branding are more valuable than ever. As artificial intelligence (AI) continues to revolutionize creative processes, it also introduces challenges and opportunities for protecting trade dress—a unique form of intellectual property that safeguards the visual, auditory, or sensory aspects of a brand.
Trade dress, typically associated with a product’s packaging, design, or other non-functional elements, is expanding its footprint into the digital and AI-driven realm. From iconic animations to groundbreaking AI-generated content, understanding the overlap of trade dress and AI is critical for creators, businesses, and consumers alike.
What Is Trade Dress?
Trade dress refers to the visual or sensory characteristics of a product or service that distinguish it from competitors. Historically, this concept has been tied to physical goods, such as Coca-Cola’s contoured bottle or McDonald’s golden arches. However, trade dress extends to non-tangible assets like the “look and feel” of a website, distinctive soundtracks, or even the unique cadence of an AI-generated voice.
For a trade dress to be protectable, it must:
- Be Distinctive: It must clearly identify the source of the product or service, either by “inherent distinctiveness,” or through “secondary meaning,” also called acquired distinctives.
- Not Be Functional: The overall combination of features cannot serve a functional purpose (e.g., the sound of a car engine isn’t trade dress, but a unique car chime might be).
- Have Acquired Secondary Meaning: For some types of trade dress, like product design or single colors, it can never be inherently distinctive. Instead, over time, consumers must associate the combination of features with a specific source, although they don’t have to know the source’s name. Packaging trade dress, in contrast, may be protected immediately, as “inherently distinctive.”
Trade Dress in the Age of AI
AI-generated content has brought a new dimension to trade dress. Algorithms can create characters, voices, and digital environments that feel personal and distinctive. However, the question arises: how do you protect these creations under trade dress laws? This protection is different from traditional copyright and right of publicity rights, although there may be much overlap in the AI world.
AI Voices as Trade Dress
Think of Siri, Alexa, or Jarvis from Iron Man. These AI voices are distinct and recognizable, forming a part of the brand identity for Apple, Amazon, and Marvel. They are designed to evoke trust, familiarity, and even a sense of companionship.
For example:
- Siri’s tone is calm, neutral, and informative, representing Apple’s minimalist brand ethos.
- Alexa’s voice is warm and conversational, aligning with Amazon’s user-friendly focus.
Such distinctive voices could be argued as trade dress because they fulfill the criteria of distinctiveness and non-functionality. Protecting these voices ensures they cannot be replicated by competitors to dilute brand identity.
AI-Driven Designs in Entertainment
AI can now design characters, animations, and digital environments. These elements, like Disney’s signature animations or Pixar’s unique visual storytelling style, can serve as trade dress. With AI’s ability to mimic styles, protecting these designs becomes critical.
For example:
- Disney’s trade dress includes the distinctive opening castle animation with its ethereal music.
- Pixar’s bouncing lamp intro is another hallmark that combines sound and visuals, easily tied to its brand.
If AI replicates these styles, it would threaten the uniqueness these studios rely on to connect with audiences.
Case Studies: Trade Dress in Entertainment
To better understand how trade dress and AI overlap, let’s explore several well-known examples from the entertainment industry.
Mickey Mouse’s Evolution
Though Mickey Mouse’s trademark is a well-known legal battleground, his distinctive look and high-pitched, cheerful voice may also be considered trade dress. As AI tools can replicate or even reimagine Mickey’s voice and movements, protecting the “look and feel” becomes critical to maintain Disney’s hold on its iconic character, even after copyright eventually expires. This is true for many other distinctive characters, including Minnie, Roger Rabbit, and other iconic figures whose unique characteristics are integral to their brand identity.
Netflix’s UI Design
While not a traditional entertainment asset, Netflix’s “look and feel” exemplifies trade dress in digital entertainment. From the dark-themed interface to the auto-play trailer previews, these elements are instantly recognizable. If AI were to mimic Netflix’s exact design for another streaming service, it could harm Netflix’s brand identity.
Challenges at the Intersection of AI and Trade Dress
The growing use of AI introduces a litany of complex legal and ethical challenges to trade dress protection, including:
Proving Distinctiveness
With AI capable of creating vast variations of designs, proving that a feature or combination of features is distinctive and not merely descriptive, or generic becomes more difficult. And determining whether the AI is considered product design trade dress, or packaging trade dress, or a different type of trade dress, may be a Gordian knot. But such classification has important ramifications for such issues as whether the trade dress may ever be inherently distinctive or may only be protected on a showing of acquired distinctiveness.
Addressing Infringement
AI can easily replicate voices, designs, and animations, making it harder to identify and address trade dress infringement. For instance, if an AI model generates a voice eerily similar to a protected AI assistant, how can businesses enforce their rights? Think of all the distinctive voices, for example, used in animation movies, of well-known people. And AI can mimic deceased, not just live, celebrities’ voices, images, and styles with ease. Elvis Presley, for example, or his classic gyrations, might be used in an internet dating service to woo new customers. How about our favorite western characters, John Wayne’s distinctive voice and style of speaking, or Humphrey Bogart? And essential issues like determining the likelihood of confusion may have a whole new interpretation.
Will consumers be confused as to source or sponsorship of products or services featuring AI-generated voices and similar elements? How can confusion be proven, especially when consumers may recognize these as AI-generated imitations rather than genuine, source-identifying originals?
Additionally, how will the traditional trade dress similarity be assessed when AI can create endless subtle variations in voice timbre, pronunciation, octaves, speed, accent, language, and yet still mimic a distinctive voice or personality?
Ensuring Compliance Across Jurisdictions
Trade dress laws vary across countries, making it difficult for global entertainment brands to ensure their assets are uniformly protected in the face of AI-driven content creation. For instance, could Elvis Presley’s iconic voice and Southern accent be realistically replicated in Farsi, Hebrew, or other foreign languages? Could AI even adapt it to sing in medieval Latin? These scenarios highlight the potential for misuse and raise important questions about how such adaptations might be used—or misused—in AI applications, further complicating compliance and enforcement efforts.
What’s Next? Best Practices for Protecting Trade Dress in AI
Businesses and creators in entertainment should consider these strategies to safeguard their trade dress as AI becomes more prevalent:
Develop a Comprehensive IP Strategy
Combine trade dress protections with trademarks, copyrights, and patents for a multi-layered approach. For example, register a character’s design as a copyright while securing trade dress protection for its voice. Although use of a distinctive character might itself be protectable trade dress.
Monitor the Market
Invest in tools to track AI-generated content that could infringe on your trade dress rights. Early identification of potential infringement is critical to enforcing rights and can help save greatly on litigation fees.
Work with Experienced IP Legal Counsel
Navigating the nuances and complexities and ever-evolving law of trade dress and AI requires expertise. Engage legal counsel with such expertise and the appropriate experience to ensure compliance and proactive protection strategies. Not all IP attorneys deal with trade dress, or AI, and even less with both.
Leverage Technology
Use AI to your advantage employing AI-driven tools to track potential infringement and generate metadata that establishes the originality of your creations. This is akin to the practice used by telephone directory publishers in the past, where they intentionally inserted fictitious names or phone numbers into a telephone directory. If competitors copied these fabricated entries, it provided clear evidence of unauthorized copying. Similarly, AI-generated metadata can serve as a modern safeguard to protect your intellectual property.
Conclusion
The intersection of trade dress and AI is reshaping how we think about intellectual property in the entertainment industry and beyond. This evolving landscape will be explored in future articles, including other industries. As AI’s capabilities grow, so does the need for robust protection strategies to ensure that distinctive voices, designs, and experiences remain unique. Trade dress is a critical tool for protection in these industries, adding value to sales and brand marketing. However, as with all intellectual property, strong protection measures are essential.
Trade dress law offers a powerful means to safeguard these assets, but businesses and creators must adapt to the challenges AI presents. By staying vigilant and proactive, brands can maintain their competitive edge and continue delivering the unique experiences that audiences and consumers know and love.
At Omnus Law, our IP attorneys specialize in helping entertainment and tech businesses navigate the complexities of trade dress and AI. Intellectual Property Partner, William E. Levin, authored Trade Dress Protection, one of the leading legal treatises on trade dress, published since 1994 by Thomson Reuters West (2d ed.). Contact us today to learn how we can help protect your most valuable intellectual property assets and your use of AI in conjunction with them—or to defend against potential infringement claims if a competitor challenges your AI’s use of IP.