Identical by Design: AI’s Threat to Trademark Distinctiveness in the Fashion and Creative Industries

The arrival of artificial intelligence has transformed various sectors, particularly the fashion and creative industries. While AI offers remarkable efficiencies and capabilities, it simultaneously poses a significant threat to originality by default resorting to uniform expressions for the final result, an essential characteristic of artistic expression. This phenomenon, often described as AI homogenization[1], is no longer just a cultural concern. It is evolving into a trademark distinctiveness crisis, with direct implications for Canadian and global IP law.

Trademarks depend on one foundational concept: distinctiveness, a trademark must serve as a source identifier. AI is a powerful tool for business creativity and efficiency but it’s not a substitute for proper trademark clearance and legal diligence. Whether you’re using AI tools or protecting your brand from AI-generated infringement, the key is to stay proactive, not reactive[2].

Businesses should therefore conduct proper trademark clearance searches at an early stage[3] in relevant jurisdictions and always engage with an IP specialist to seek advice on the legal implications associated with incorporating such AI generated content into your branding or promotional materials[4].

Generative AI might generate a brand name or strapline that coincides with an existing trademark or copyrighted work[5] especially when creators rely on the same model prompts and defaults. The result is a collapsing aesthetic spectrum with thousands of brands arriving at extremely similar logos, colour palettes and aesthetics. This is especially problematic in Canada, where the April 2025 Trademarks Act[6] amendments introduced more scrutiny over distinctiveness and placed a greater burden on applicants to show that their marks are capable of distinguishing their goods in crowded markets.

Fashion amplifies this issue. A fashion designer who uses generative AI to produce and commercialize products that infringe existing trademarks could be held liable under a direct infringement theory. The trademark owner would have to show ownership of a valid trademark and a likelihood of confusion resulting from a defendant’s alleged infringing use[7].

For Canada, the implications are profound. Fashion’s reliance on distinctive aesthetic identity is particularly threatened as AI makes trade-dress, the overall commercial image of a product or service that indicates or identifies the source of the product or service[8] distinctiveness. Trademark law depends on originality. When pattern-driven creation overtakes creativity, the room for originality shrinks. If generative AI continues to create this homogenization, the next major IP challenge will not be infringement, but the preservation of distinctiveness itself.

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