Trademark Protection and the Challenges Created by Artificial Intelligence

In the modern economy, trademarks are essential elements for commercial identity and have as their primary purpose to differentiate the products and services of a company from those of competitors. Currently, trademark protection is regulated in the Republic of Moldova by the Law on Trademark Protection No. 39-XVI of February 29, 2008.

According to the legislation in force, a trademark is a sign susceptible to representation, which aims to individualize and distinguish the products, services of a natural or legal person from other similar products and services. The trademark can be visual, sound, olfactory, tactile, being essential to allow the identification of the commercial origin.

For a trademark to be registered and benefit from legal protection, it must meet several conditions:

1. Distinctiveness

It is the ability of a trademark to be instantly recognized by the consumer and to clearly differentiate the products and services of a company from those of competing companies, through unique elements. Distinctiveness does not refer to the novelty of the product or service, and a trademark does not fall within this criterion when it describes the products and services themselves and their characteristics such as value, quality, purpose, provenance, geographical origin, etc.;

2. Legal character

The trademark must not prejudice the interests of the state, it cannot be contrary to public order, good morals. Any sign that harms the dignity of individuals, minorities, ethnic groups, offends religious, national, professional feelings, etc. will not be registered as a trademark;

3. Non-deceptiveness

Trademarks may not create uncertainty among consumers as to the geographical origin of the product or service, its quality or nature;

4. Respect official symbols

Trademarks that include official symbols, state names, emblems, coats of arms, flags or symbols with special value may not be registered without authorization from the competent authorities; Trademarks that contain the official or historical name of the Republic of Moldova, its abbreviation, names of territorial administrative units may not be registered.

5. Protection of symbols with special value

Trademarks that contain signs of high symbolic value, in particular religious symbols, or their use could affect social or cultural interests may not be registered.

6. Protection of geographical indications and designations of origin

Geographical indications and protected designations of origin constitute a distinct area of ​​intellectual property, with a specific protection regime, different from that of trademarks. In this context, trademark legislation establishes clear limits to avoid misleading the consumer or distorting the specific function of geographical indications or designations of origin. Thus, the following cannot be registered:

• Trademarks that contain or consist of geographical indications or designations of origin protected on the territory of the Republic of Moldova;

• Trademarks that exploit the reputation of a geographical indication, including by using expressions such as “of the type”, “of the kind”, “style” or “imitation”;

• Trademarks similar to geographical indications, when they could generate confusion or allow obtaining an unjustified advantage.

The legislation also provides for situations of refusal to register a trademark when it infringes on already registered and protected rights. Thus, a trademark will not be registered if it reproduces or is similar to a trademark already registered for the same category of products or services; if it may create confusion in the consumer's perception, including by association; if it is similar to a trademark that enjoys a reputation in the Republic of Moldova, and its use could generate an unjustified advantage, or would harm its reputation even in the case of different fields of activity.

A trademark registration is carried out by submitting an application to the State Agency for Intellectual Property (AGEPI), accompanied by a clear graphic reproduction of the requested sign, in accordance with the dimensions and requirements provided for by the legislation. It is important to note that the content of the application does not indicate the author nor the method of creating the sign whose registration is requested.

In the context of the development of technology and, in particular, the explosive growth in the popularity of artificial intelligence, the question arises whether a sign generated by artificial intelligence can be registered as a trademark? The answer is yes, in principle, for the simple reason that the legislation in force does not provide for any restriction in this regard, nor is there an obligation to indicate the method of creating the sign or to demonstrate that it was created exclusively by man.

Before filing an application for registration of a trademark generated with the help of artificial intelligence, it is important to check the conditions of use of the AI ​​tool used to create the graphic sign. Some AI programs do not automatically transfer the rights to the generated creations.

The use of artificial intelligence in the process of creating a brand brings obvious benefits, such as simplicity, speed and diversity of graphic options. However, this also involves certain risks. First of all, the risk of generating signs similar or even identical to trademarks that already benefit from legal protection. AI programs are designed to process large volumes of data, including images and visual elements that already exist, which obviously can lead to the creation of graphic signs that reproduce protected trademarks. From here comes the idea that there is no full certainty about originality, compared to a human creation, where the creative process is conscious and assumed. In this sense, difficulties may arise in the chapter of distinctiveness of the brand.

A trademark is an essential legal and economic instrument for the individualization and protection of a company's commercial identity. The procedure for registering a trademark is a meticulous one and involves compliance with criteria well defined by the legislation in force. However, the current legislation is fair and even allows the protection of graphic signs generated by artificial intelligence. However, a prudent approach and rigorous research are essential to ensure the distinctive character and effective protection of a trademark.