1. Introduction

The development of artificial intelligence technology (Artificial Intelligence or AI) has brought changes to various business activities, including the logo creation process. At present, various AI platforms allow users to generate logo designs simply by entering keywords, business concepts, or certain visual preferences. A process that previously required time and costs to engage the services of a designer can now be completed in a relatively short time.

For startups and MSMEs, such convenience is certainly appealing. In addition to saving time, the use of AI platforms can also be a more economical alternative compared to using conventional design services. However, the ease of generating logos also raises other issues that need to be considered, particularly when the logo is to be used as a business identity and registered as a mark.

2. Legal Basis for AI Logos in Mark Registration in Indonesia

To date, there are no specific provisions in Indonesia that expressly regulate logos created with the assistance of AI or the registration of AI-generated logos. Therefore, the assessment continues to refer to Law Number 20 of 2016 on Marks and Geographical Indications as amended by Law Number 6 of 2023 (“Marks and Geographical Indications Law”).

Pursuant to Article 1 point 1 of the Marks and Geographical Indications Law, a mark is a sign that can be displayed graphically in the form of an image, logo, name, word, letter, number, color arrangement, in 2 (two) dimensional and/or 3 (three) dimensional form, sound, hologram, or a combination of 2 (two) or more of these elements to distinguish goods and/or services produced by a person or legal entity in the trading of goods and/or services. Therefore, when a logo is to be used commercially, the aspect of its legal protection needs to be considered from the outset.

3. Requirements for an AI Logo to Be Registered as a Mark

Pursuant to Article 20 of the Marks and Geographical Indications Law, a logo cannot be registered if it is contrary to the state ideology, laws and regulations, morality, religion, decency, or public order; merely refers to the goods or services applied for; misleads the public; contains inaccurate information; lacks distinguishing power; or constitutes a generic name or a public symbol.

One of the matters that needs to be considered is whether the logo has distinguishing power (distinctiveness). The main function of a mark is to distinguish the goods or services of one business actor from the goods or services of other business actors. Pursuant to Article 20 letter e of the Marks and Geographical Indications Law, a mark cannot be registered if it lacks distinguishing power. Therefore, a logo that is too simple, too generic, or does not have a sufficiently distinctive character risks being deemed incapable of performing that distinguishing function.

4. Risk of Similarity Between AI Logos and Marks Owned by Other Parties

In addition to distinguishing power, business actors also need to ensure that the generated logo does not bear similarity to a mark already owned by another party. The use of AI does not guarantee that every design generated is completely different from existing designs. In certain circumstances, the results produced by AI may bear similarity to a logo that has previously been used or even registered as a mark by another party.

This condition needs attention because mark registration does not only relate to the design created by the applicant, but also takes into account the rights of other parties and the good faith of the applicant. Article 21 of the Marks and Geographical Indications Law regulates the refusal of applications that have similarity in principle or in their entirety with a registered mark or an earlier filed application for similar goods and/or services, a well-known mark, or a registered geographical indication. Refusal may also apply if the sign resembles the name of a famous person, a photograph, the name of a legal entity, the name or emblem of a state or institution, or a certain official sign without the approval of the competent party, as well as if the application is filed by an applicant acting in bad faith. Accordingly, the fact that a logo is created using AI does not mean that the logo is automatically free from potential legal issues.

5. Legal Risks Before Registration and the First to File Principle

Legal risks may even arise before the registration process is carried out. Business actors may have already used an AI-generated logo on packaging, social media, signboards, promotional materials, and various other commercial activities. If, after its use, it turns out that there is another party’s mark that has similarity in principle or in its entirety, the business actor not only potentially faces obstacles in registration, but may also face opposition or disputes from a party who considers its mark rights to be infringed. The mark registration system in Indonesia adheres to the first to file principle, namely a principle that gives priority to the party that first lawfully files a mark registration application with the state. This principle is reflected in Article 3 of the Marks and Geographical Indications Law, which states that the right to a mark is obtained after the mark is registered. The application of the first to file principle is not absolute, since mark registration must still be carried out in good faith and fulfill the substantive provisions as regulated in the Marks and Geographical Indications Law, including the provisions on the refusal of marks that have similarity in principle with another party’s mark.

6. Copyright Aspects of AI-Generated Logos

In addition to the mark aspect, business actors also need to consider the copyright aspect of AI-generated logos. Law Number 28 of 2014 on Copyright links copyright to the existence of an author in the form of one or several persons, so that works generated entirely by a machine without human creative involvement potentially do not obtain copyright protection. In practice, the ownership and scope of use of AI-generated logos largely depend on the terms and conditions (terms of use) of the platform used, including whether or not commercial usage rights are granted to the user. Therefore, those provisions should be reviewed before the logo is adopted as a business identity.

7. The Importance of a Trademark Clearance Search Before Using an AI Logo

For this reason, the use of AI-generated logos should not stop at considering whether the design looks attractive or fits the business identity. Business actors also need to conduct a mark search (trademark clearance search) before the logo is used and filed for registration. The search needs to cover registered marks and earlier filed applications and focus on the similarity of signs and the relatedness of goods or services. The assessment of similar goods or services is not determined solely by the similarity of class, but also takes into account the nature, purpose and method of use, distribution channels, complementary relationship, level of competition, and relevant consumers as regulated in Regulation of the Minister of Law and Human Rights Number 67 of 2016 on Mark Registration as amended by Regulation of the Minister of Law and Human Rights Number 12 of 2021.

This step is part of legal risk mitigation. An early examination can help business actors determine whether a logo is safe enough to use, needs to be modified, or should be replaced before being widely used. This is certainly more efficient than having to undertake rebranding after the logo has already been used for products, packaging, marketing, and various other business assets.

8. Conclusion

Ultimately, the use of AI in the logo creation process is not a reason that automatically prevents mark registration in Indonesia. A logo generated with the assistance of AI can still be filed as a mark as long as it fulfills the requirements under the Marks and Geographical Indications Law and does not conflict with the rights of other parties. Proper and early mark registration is an important step to obtain legal certainty and protection of the exclusive rights of the mark owner. Accordingly, the legal issue is not merely the technology used to generate the logo, but whether the logo has distinguishing power, fulfills the registration requirements, and does not have a similarity that may give rise to conflict with marks that have already obtained legal protection.

Contributor: Hotli Hayati Nainggolan | Legal Secretary