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"I applied for a trademark for a new brand that would put the company's fortunes at stake, but I...
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"We asked ChatGPT to come up with the brand name" -- we often hear this voice in startups and new business settings. Let the AI come up with a number of candidate names, choose the one that sounds best, and use it as it is for the logo or package. This may seem like a smart move, but did you know that if the name is the same or similar to another company's registered trademark, there is a risk of being sued for an injunction or damages for trademark infringement?
In this article, we will explain the overall picture of trademark risks surrounding AI-generated brand names, and provide concrete steps to effectively utilize AI while avoiding risks. In conclusion, Although AI can be an excellent ``wall-breaker,'' it is the safest and most cost-effective option to leave trademark searches and applications to an expert patent attorney.
Table of Contents
- Why a brand name created by AI is a "trademark infringement"
- Three risks of using AI-generated brand names as is
- 4 steps to avoid trademark risk while leveraging AI
- Why you should hire a patent attorney for trademark research and registration in the AI era
- Summary: AI provides materials, patent attorneys provide quality assurance
Why is a brand name created by AI a "trademark infringement"?
The training data contains a large number of registered trademarks
Large-scale language models (LLMs) such as ChatGPT are trained on vast amounts of text data on the Internet. This includes a large number of company brand names, product names, and service names - in other words, registered trademarks. AI does not make judgments such as ``this word is registered as a trademark'' or ``this name must not be used.'' It simply statistically generates "character strings that sound natural and attractive."
As a result, the possibility that the brand name candidates proposed by AI will include names that are the same or similar to names that have already been trademarked by other companies is not low. There is an ironic structure in that the richer the training data, the easier it is to generate character strings that resemble existing trademarks.
"I didn't know because it was created by AI" doesn't work -- the wall of presumption of negligence
In the case of trademark infringement, claims such as "I did not know" or "I had no malicious intent" have little meaning. Under Japanese trademark law, the premise is thatregistered trademarks are published in official gazettes and therefore can be found through research.
⚠ Beware of the presumption of negligence
Article 39 of the Trademark Act applies mutatis mutandis Article 103 of the Patent Act, and there is a presumption of negligence in the case of trademark infringement. In other words, the defense that ``I am not at fault because the name was suggested by AI'' cannot be accepted, and the failure to conduct a trademark search itself is considered negligence. Whether or not AI is used has no bearing on the success or failure of a breach.
"Plausible and dangerous name" created by hallucination (hallucination)
AI has a phenomenon called "hallucination". This is a problem in which information that is not based on facts is output as if it were correct. Even when generating a brand name, AI may confidently answer, "This name is not registered as a trademark," but that answer itself may be hallucination.
💡 Pitfalls of Hallucination
If you ask an AI, "Is this name registered as a trademark?", you can't expect an accurate answer. The AI does not access the trademark database in real time, but merely generates "appropriate answers" within the range of training data. Using AI answers as a substitute for trademark research is extremely dangerous.
So, how is "similarity" of trademarks determined? The Japan Patent Office's examination standards are based on the following three factors:
Judgment of trademark similarity ─ 3 elements
| Element | Content | Judgment example |
|---|---|---|
| Appearance | Do the text look similar? | "SONY" and "SONI" etc. |
| Shoko | Are the pronunciations and pronunciations similar? | "Askul" and "Askur" etc. |
| Notion | Are the meanings/images similar? | "King" and "King" etc. |
If any one of these three elements is determined to be similar, the trademark as a whole may be considered similar. Since AI is unable to make such multifaceted similarity judgments, there may be cases where a name that AI determines is "original" is actually similar in appellation to an existing trademark.
Three risks of using AI-generated brand names as is
Using AI-generated brand names without thorough research poses three serious risks:
Risk ①: Injunction and damages
If you use a name that is the same or similar to another company's registered trademark for the same or similar products or services, you may be subject to a request for an injunction against use and a claim for damages from the trademark owner. If your request for an injunction is granted, you must immediately stop using the name.
⚠ Calculating the amount of damages
Based on Article 38 of the Trademark Law, the amount of damages is calculated based on the infringer's profits and usage fees. The larger the scale of the business, the higher the amount of compensation, and it is not uncommon for compensation cases to range from millions of yen to tens of millions of yen. Additionally, attorney fees may also be added.
Risk ②: Incurring rebranding costs
If you are forced to change your brand name due to an injunction, the cost will be immeasurable. Redesign your logo, revamp your packaging, revamp your website, rework your business cards and collateral, change your domain—everything needs to be redone.
⚠ The intangible losses are also huge
It's not just the monetary costs. Changing the brand name means resetting to zero the customer recognition and trust that has been built up until then. Losses that are difficult to quantify, such as loss of SEO ratings, confusion among SNS followers, and costs of explaining things to business partners, will put pressure on your business over the long term.
Risk ③: Application for trademark registration will be rejected
Even if you try to register an AI-generated name as a trademark, if it is similar to a prior trademark, a Notice of Reasons for Refusal will be issued and the registration will not be approved. Not only is the application fee (stamp fee + agent fee) wasted, but the risk of infringement will not be eliminated if you continue to use the product without being able to register it.
⚠ Beware of double losses
If you change your name after a rejection, in addition to the rebranding costs, the application fee (usually starting from 12,000 yen) will also be irrecoverable. Filing an application without conducting a preliminary search is an act that will lead to "double loss."
We have organized the three risks in the table below.
| Risk | Content | Possible damage |
|---|---|---|
| Injunction/damages | Cessation order and monetary compensation | Millions of yen to tens of millions of yen |
| Rebranding cost | Complete renewal of logo, package, website, etc. | Direct costs + loss of brand equity |
| Registration refused | Application rejected due to similarity to prior trademark | Loss in filing fees + continued risk of infringement |
4 steps to avoid trademark risk while leveraging AI
There is no need to completely eliminate AI. The key isto properly limit the role of AI and combine it with a human (expert) verification process. Please follow the 4 steps below.
Step 1: The AI considers it to be a "wall-banging opponent"
You can request the AI to "suggest 20 names that fit your brand concept" and use it as idea seeds. The key here is to treat AI suggestions as a "starting point" rather than a "final plan." Humans evaluate the sound, memorability, consistency with the brand image, etc., and narrow down the candidates to 5-6. At this stage, you can make the most of the strength of AI (generating a large number of variations).
Step 2: Simple screening with Google search/SNS search
Search for the narrowed down candidate names on Google search or SNS (X, Instagram, etc.). Check to see if a company or brand with the same name already exists or if the domain has been acquired. Although this is not a formal trademark search, it is useful as a filter toeliminate obvious conflicting namesearly. At this stage, you can further narrow down your choices to 2-3 candidates.
Step 3: Simple search on J-PlatPat (patent information platform)
Free database provided by the Japan Patent OfficeJ-PlatPat (https://www.j-platpat.inpit.go.jp/) to search for the remaining candidate names. By performing a name search from the "Trademark" tab, you can easily check whether the same or similar registered trademark exists. However, J-PlatPat's search is only a simple one, and specialized knowledge is required to determine the scope of similarity and to appropriately set the classification of designated goods and services.
Step 4: Request a trademark search and application from a patent attorney
Once you have decided on your final candidates, request a formal trademark search (earlier trademark search) and application procedures from a patent attorney. Patent attorneys use not only J-PlatPat but also paid databases and past examination examples to comprehensively judge similarities based on the three elements of appearance, name, and concept. Furthermore, we provide consistent support from selecting the most suitable category (designated goods and services), assessing the risk of rejection in advance, and formulating an application strategy.
💡 Beware of the first-to-file principle - first-come-first-served rule
Japan's trademark system adopts the first-to-file system (the person who files first obtains the rights). While you are procrastinating and thinking, ``I'll apply for a trademark soon after I've decided on a good name,'' there is a risk that someone else will apply for the same or similar trademark first. Once you have finalized your brand name, it is important tobegin the application process as soon as possible.
Why you should hire a patent attorney for trademark research and registration in the AI era
Many people may be thinking, "Wouldn't it be possible to reduce costs by searching for and applying for J-PlatPat yourself?" However, trademark registration is more than just paperwork; it is an intellectual property strategy that requires professional judgment. Below are three reasons why you should hire a patent attorney.
Reason 1: The accuracy of similarity judgment is different
Determining the similarity of trademarks is more than just comparing character strings. Patent attorneys comprehensively judge the three elements of appearance, name, and concept based on past trial decisions, judicial precedents, and the patent office's examination standards. For example, even if there are "no hits" in a name search on J-PlatPat, it may be determined that they are similar in appearance or concept. Such multifaceted analysis is difficult for both AI and the general public. Accurate risk assessment is possible only with the experience and expertise of a patent attorney.
Reason 2: Optimization of classification (designated goods and services)
Specification of "classification" is required for trademark registration. The Japanese trademark system ranges from Class 1 to Class 45, and the category in which you apply is directly linked to the scope of rights and costs. If the division is too broad, it will increase costs; if it is too narrow, it will provide insufficient protection. A patent attorney will select the most appropriate classification and designated goods and services, taking into consideration the nature of the business and future development. This allows you to secure the necessary and sufficient scope of rights without waste.
Reason 3: Accurate rebuttal to the notice of reasons for refusal
It is not uncommon to receive a Notice of Reasons for Refusal from the Patent Office after filing an application. In this case, you will need to submit a written opinion or written amendment to refute the claim. The patent attorney builds a persuasive counterargument against the examiner's points by citing legal grounds and past trial decisions. It is difficult to refute your case on your own, and if you do not take appropriate action, your application may be rejected and you may have to reapply.
Check the difference between filing on your own and requesting a patent attorney in the comparison table below.
| Comparison item | Self-application | Ask a patent attorney |
|---|---|---|
| Trademark search accuracy | J-PlatPat simple search only | Paid DB + trial decision example + 3-factor analysis |
| Category selection | Self-judgment (risk of excess or deficiency) | Optimization based on business strategy |
| Response to reasons for rejection | Self-response (low success rate) | Rebuttal based on legal grounds |
| Registration success rate | Low (high risk of oversight) | High (prescreened) |
| Total cost | Cheap but costly to redo in case of failure | Initial cost is required, but long-term security |
Summary: AI provides materials, patent attorneys provide quality assurance
The most important idea when it comes to brand naming for the AI generation can be summarized in the following sentence.
AI is "the chef's assistant who prepares the ingredients",
Patent attorneys are "the chef who prepares the taste and guarantees safety"
Having AI generate a large number of brand name ideas is a very efficient first step. However, whether the candidate name does not infringe on trademark rights, whether it can be registered as a trademark, and in what category it should be applied for - these legal judgments and procedures are the specialty of patent attorneys.
We live in an era where you can no longer just use the AI-generated name and say "I didn't know", so understanding and putting into practice the optimal division of roles between AI and patent attorneys is the best way to protect your brand.
For inquiries or estimates regarding trademarks, please feel free to contact us using the form below.
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AUTHOR
Takefumi SUGIURA （杉浦 健文）
EVORIX Intellectual Property Law Firm Managing Patent Attorney
Supports clients across IT, manufacturing, startups, fashion, and medical industries, covering patent, trademark, design, and copyright filings through trials and infringement litigation. Specialized in IP strategy for AI, IoT, Web3, and FinTech. Member of the Japan Patent Attorneys Association (JPAA), Asian Patent Attorneys Association (APAA), and Japan Trademark Association (JTA).
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