How far can you take creative claims?

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How far can you take creative claims?

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Can AI Get Too Creative For The Law? What Australian Businesses Need To Know

“Creativity is intelligence having fun,” Albert Einstein supposedly said – and AI tools have certainly taken that to heart.

In seconds, they can throw up brand names, logos, product descriptions and even full marketing campaigns. But as AI gets more creative, it can also drift outside what the law allows or protects, and that has real‑world consequences for Australian businesses.

​At Sharon Givoni Consulting, many clients now come in with AI‑generated names and logos and ask a simple question: “Is this legally safe to use?” The honest answer is: it depends. AI does not change the rules of trade mark or copyright law – it just makes it easier to run into those rules at scale.

Does an AI‑generated logo automatically get copyright?

In Australia, copyright does not automatically cover every image that exists. For copyright to apply, there usually needs to be enough human creativity in the work. If you let an AI platform generate a logo and accept it more or less “as is”, with only tiny tweaks, the law may say there is no copyright in that logo at all.

That can be surprising. The logo feels like yours because you chose it, but the legal question is: did a person make genuine creative choices, or did the machine do almost everything? If the answer is “the machine did it,” copyright protection is shaky.

This has practical consequences. Imagine you launch a skin‑care brand with an AI‑generated logo. The brand takes off, influencers start using it, and sales grow. A year later, cheap look‑alike products appear with a very similar “style” of logo – same colours, same layout, slightly different name. If there is no copyright in your logo, it becomes harder to stop others copying that general look and feel, especially outside strict trade mark use. Potential buyers or investors may also be wary if there is no clear copyright sitting behind your visual identity.

For that reason, many businesses now treat AI as a starting point and then ask a human designer to refine the logo substantially, so there is clear human authorship, and then back everything up with registered trade marks.

Can you register an AI‑generated name or logo as a trade mark?

On the trade mark side, the law is less worried about where the idea came from. Under the Trade Marks Act 1995 (Cth), what matters is whether the mark can operate as a trade mark, whether you actually use or intend to use it in Australia, and whether someone else already has stronger rights in a similar mark. The law does not care if the first “spark” came from AI, a branding agency or your teenager doodling on a napkin.

So yes, in many cases you can register an AI‑generated name as a trade mark, as long as:

• it is not too descriptive or generic for your goods or services; and
• no one else already owns or uses a confusingly similar mark in Australia.

Take a hypothetical café in Melbourne that asks AI for “cool, modern café names”. AI suggests “Bean & Bloom”. You love it, register the domain name, print menus and launch the brand. Later, a Brisbane café that has been trading as “Bean and Bloom” for years – but never registered its mark – spots you on Instagram and raises an objection. Australian law often favours the first user, even if they did not file first, so you may find yourself in a trade mark dispute even though “AI thought of it.”

Why AI‑generated names are not automatically “unique”

Many people assume that if a computer came up with the name, it must be unique. In reality, AI systems are trained on huge datasets: existing registered trade marks, brand names scraped from websites and social media, product descriptions and more. In simple terms, AI is remixing what it has seen.

That means an AI‑generated name can easily be:

• very close to an existing registered trade mark; or
• very close to a brand that has been used for years but never registered.

Here is the thing: AI will not flash a big red warning sign saying “this is probably taken”. It just gives you options.

I like what Mark Twain once wrote: “The difference between the almost right word and the right word is really a large matter”. This is very true in the world of trade marks. An “almost right” brand name can be the one that lands you in legal trouble.

This is why traditional trade mark clearance searches are still essential, even – or especially – for AI‑created brands. In Australia, IP Australia largely checks the Register, not the whole marketplace, when examining your application. Someone with earlier unregistered rights may only object once you become visible, by which time you have already paid for signage, packaging and marketing.

When AI gets “too creative”

AI can also get “too creative” by producing things that cross legal lines. It might make a logo that’s very close to a famous brand, write ad copy that breaks consumer or health‑claims rules, or mash together images that still contain copyrighted material.

In food and lifestyle, there are already worries about AI recipes, photos and wording that look a lot like work from well‑known bloggers and magazines, and news outlets have reported artists calling for stronger rules about using their work to train AI without permission.

AI depiction of the pie on the left – looks a bit different doesn’t it?!

The pattern is the same: AI is powerful, but it does not know where the legal lines are.

That is where human judgment – and proper legal advice – has to step back in.

If you use AI tools to create a business name, logo or branding, there’s an important issue many people miss: who actually owns it.

Some AI platforms say you can use what you create, but they may still keep certain rights. Others say you “own” the result, but don’t guarantee that it is legally protected or even recognised under Australian law.

This can cause serious problems later. If you want to grow your business, bring in investors, franchise, or sell, you don’t want to discover during due diligence that you never properly owned your brand or logo.
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What we can do for you at Sharon Givoni Consulting

• Check whether your AI-generated name or logo is legally safe to use
• Explain what you do (and don’t) own under Australian IP law
• Review AI platform terms so there are no hidden surprises
• Help add human creativity to strengthen copyright protection
• Run trade mark searches before you invest further
• Register trade marks in Australia (and overseas if needed)
• Work with your designers and marketers so AI supports your business — not risks it

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.