An Analysis from Industrial and Intellectual Property

Artificial intelligence (AI) has revolutionized multiple aspects of our daily lives and has opened up new possibilities in the world of digital creation. One of these manifestations is AI-generated avatars, used in sectors such as entertainment, e-commerce and interactive platforms. However, the increasing commercial use of these avatars raises important legal questions: How can an AI-generated avatar be protected from an industrial and intellectual property point of view? This article aims to analyse the current legal channels for the protection of avatars in Spain, both from the perspective of industrial property and intellectual property, and to reflect on the legal controversies posed by authorship in AI-generated works.

Avatars and Industrial Property

In the field of industrial property, avatars generated by AI can receive protection through their registration as  industrial designs or trademarks. The Law on the Legal Protection of Industrial Design in Spain allows avatars to be registered based on their aesthetic characteristics, such as shape, lines and colours. This avenue of protection is especially useful if the avatar is intended to be commercially exploited, either as part of an interactive product or as a standalone design.

On the other hand, the Trademark Law offers the possibility of registering avatars as trademarks, as long as they meet the requirements of differentiity. An avatar that acts as a distinctive sign in the market, for example, a logo or corporate image, can be registered as a figurative or three-dimensional trademark. Companies like Meta have already taken this approach, registering their three-dimensional avatars as trademarks, which reinforces their commercial identity and gives them legal protection from third parties who could copy or imitate their creations.

The complementarity of these two legal figures, industrial design and trademark is essential to achieve comprehensive protection of avatars. The registration of an avatar as an industrial design protects its aesthetic characteristics, while its registration as a trademark protects it in its use as a distinctive sign in the market. In this way, businesses can safeguard both the aesthetics and business functionality of the avatar.

Avatars and Intellectual Property

Beyond industrial property, the Intellectual Property Law also offers protection to avatars, and is considered as original works of art. This law covers the visual creation of avatars, as long as they are the result of human creativity. This means that graphic elements, aesthetic features, and even scripts that define an avatar’s behavior can be protected as literary or dramatic works.

The software that allows avatars to interact with users is also protected by intellectual property. The source code and algorithms that determine the avatar’s actions and responses can be registered as software works, granting the creator exclusive rights to exploit them.

However, there are limitations regarding the protectable elements of an avatar. While its pre-programmed design and behavior may be protected, an avatar’s personality or “unique” behavior is not subject to legal protection, as copyright only covers the concrete expression of an idea, not the abstract or conceptual idea itself.

The Question of Authorship in AI-Generated Avatars

One of the biggest challenges facing the current legal framework is the issue of authorship when avatars are generated by AI. According to the Spanish Intellectual Property Law, copyright can only belong to natural persons (and legal entities, in the cases expressly provided for in the Law), which creates a legal vacuum when a work is created autonomously by an AI without direct human intervention.

In cases where a person controls or directs the creative process of an AI-generated avatar, that person or entity is considered the copyright holder. However, when AI acts autonomously, without significant human intervention, the law does not offer clear protection. This legislative vacuum is the subject of debate in international forums, such as the World Intellectual Property Organization (WIPO) and the European Union Intellectual Property Office (EUIPO). These institutions are studying the possibility of creating a sui generis right  that allows AI-generated works to be protected without significant human intervention.

This issue is becoming increasingly relevant as AI-generated avatars gain prominence in various sectors. While some countries, such as the United States, have so far rejected the possibility of granting copyright to AI-generated works, arguing that only humans can be considered authors, the debate remains open and legislative progress is likely to occur in the coming years.

Conclusion

The protection of avatars generated by artificial intelligence is a field in full evolution. While industrial property offers clear ways to protect its aesthetic and commercial characteristics through registration as industrial designs and trademarks, intellectual property faces more complex challenges, especially when it comes to authoring works created by AI without direct human intervention.

Companies that use AI-generated avatars must be proactive in protecting their digital assets, registering both trademarks and industrial designs to ensure robust legal coverage. However, the current legal framework still needs to adapt to new technological realities, particularly about works generated by AI autonomously. As AI continues to advance, intellectual property laws will need to be reformed to address the challenges posed by authorship in the digital age.

At Marques & Ferrer we accompany and advise you throughout the registration process, so that you only have to worry about ensuring the continued success of your company. Start?

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As of August 3, 2024, Qatar is part of the Madrid Protocol, simplifying and expanding options for international trademark protection. This accession allows applicants to protect their trademarks in Qatar and 114 other countries with a single application.

What Changes with Qatar in the Madrid Protocol?

• Provisional Refusal Period: Qatar has set an 18-month period for the notification of possible refusals, extending the standard time frame and offering greater flexibility to trademark owners.
• Individual Fee: For trademark protection in Qatar, a specific individual fee will apply, ensuring a more personalized process.
• License Registration: Trademark licenses must be registered directly with the Qatar Office to be valid in its territory.

What Does This Mean for Your Brand?

With Qatar joining the Madrid Protocol, protecting your brand in this country is now easier and more cost-effective. You can include Qatar in your international registrations with a single application, avoiding complicated local procedures and reducing costs.

Benefit from the SME Fund Program

If you are interested in registering your brand in Qatar and other countries, benefit from the SME Fund program. This program provides financial support to small and medium-sized enterprises and self-employed individuals to cover the costs of international trademark registration. By taking advantage of this support, you can significantly reduce the expenses associated with the registration process, making it even more accessible and effective for your business.

At Marques & Ferrer, we guide and advise you throughout the entire registration process, so you can focus solely on ensuring the continued success of your business. Shall we begin?

The International Trademark is a system that provides simultaneous protection in various countries, governed by the Agreement and/or Protocol of Madrid on International Trademarks. The application follows a process similar to the national one in each selected country and can be approved or denied independently.

A requirement is to have a granted trademark registration (for countries bound by the Agreement) or a subsequently granted application (for countries under the Protocol).

At Marques & Ferrer we accompany and advise you throughout the registration process, so that all you have to worry about is ensuring the continued success of your company. Shall we begin?