Generative AI needs to don the hat of a facilitator, while manoeuvring the legal impediments, in the fashion industry

The Generative Artificial Intelligence has the potential to boost the fashion industry’s profits by $150BN to $275BN by 2030. Technology in the fashion space can be used to enhance sustainability and creativity, tailor products to consumer preferences, predict trends, and minimize barriers to entry into the fashion industry.

Generative AI includes various tools and software that work together to identify items that are similar to or slightly different from a known set of data. In the fashion industry, this technology helps retailers deal with challenges like diverse customer preferences and choices. This challenge means providing customers with many options, such as a garment in a specific shade of blue, or an alternative version with longer sleeves.?

Among the top generative AI use cases consumers look forward to, are: automating product filters based on customer needs (40%), creating customized items (37%), summarizing product reviews (37%), and customer service chatbots (36%).

The recent lawsuits against Generative AI companies have largely implicated the copyright concerns. The flood of cases is likely to be challenged by trademark owners, whose concerns could be at the forefront. Designers say that the technology’s disregard for real-world considerations like standard clothing construction or basic physics, as well as its vulnerability to “hallucinations,” are its most powerful asset, but also one of the biggest challenges in using it.

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Possibilities of trademark infringement

Generative AI in fashion design poses novel and significant issues for trademark owners. For example, an AI tool called the New Black?helps fashion designers create brand names, slogans, bags, and among other things. If tools like this can generate, within seconds, a design that resembles an existing trademark, how does the trademark owner seek redressal?

In?the case Getty Images (US) v. Stability AI, the plaintiff Getty Images asserts trademark claims against Stability AI, alleging that output generated by Stability AI’s Stable Diffusion model contains “a modified version of a Getty Images watermark, creating confusion as to the source of the images and falsely implying an association with Getty Images”.

To be liable for infringement, the accused must use the infringing trademark “in connection with the sale, offering for sale, distribution or advertising of any goods or services,” known as commercial use. The commercial use?must be?“likely to cause confusion, or to cause mistake, or to deceive” consumers as to the source of the infringing mark.

Where the defendant?provides?a service rather than a product, a plaintiff also must establish that the defendant had “direct control and monitoring of the instrumentality used by a third party to infringe”.

Plaintiffs may argue that the Generative AI company has direct control over the tool, used by the designer, to create the infringing design and/or mark, and therefore is liable for the resulting direct trademark infringement. However, plaintiffs may face a hurdle with showing the requisite knowledge by the Generative AI company, that the tool is being used to infringe on another’s?trademark.

Many Generative AI companies have affirmatively implemented safeguards to address concerns related to intellectual property infringement. For example, when prompted to create a trademark for a shoe company similar to Nike’s “Swoosh” logo, ChatGPT responded:

“I can provide guidance for creating a unique and original trademark, but I can’t create one that is intentionally similar to an existing trademark like the Nike Swoosh logo. It’s crucial to respect intellectual property rights and avoid infringing on existing trademarks. Creating a trademark that resembles another company’s trademark too closely can lead to legal issues.”

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They did a fabulous job

-??????? Maddy Maxey, a fashion designer and mentor at Made with Code, aided in the design of the dress, a Google-backed initiative, where the dress was designed with a circuit, infused into the textile, to create different animations.

-??????? Another notable example is Iris van Herpen's entry into the world of Al, with the debut of the FW23 campaign, which showcases a couture collection, that imagines a new world.

"Our creative process was exceptionally inspiring, allowing us to dream up our references of the deep sea life we had seen, and even my archive that we trained the Al with. Hence, by teaching the Al my design DNA, and the more historic architecture references, it got better “dreams”. It was very inspiring to see how marvellous Rob Rusling and his team are with Al. It brings a whole new dimension to the fashion editorial," shared Herpen.

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What you must gain and protect?

Generative AI tools such as DALL-E 2, Midjourney and Stable Diffusion are increasingly being used to produce static 2D images, and technology from companies like Runway AI Inc., which recently hosted its second annual AI Film Festival, are capable of video output.

These advancements promise various benefits to the fashion industry, including reduced costs, optimized inventory management and pricing strategy, improved analysis of customer preferences, and enhanced design and creativity.

Use of AI in e-commerce channels and commercial modeling are on the rise. Approximately 73% of fashion executives expect to make Generative AI a priority this year as a means of assisting in the creative process, such as design and product development. However, many businesses remain hesitant.

Certain companies like?Levi Strauss & Co. have begun using Generative AI to display more diversity on e-commerce channels. In March 2023, Levi Strauss announced in a press release its partnership with digital fashion studio Lalaland.ai to generate diverse AI models. The company stated this partnership would assist Levi Strauss by “supplementing models” and “creating a more personal and inclusive shopping experience” for consumers.

Jason Allen, the artist behind the AI-generated art, used Midjourney, a Generative AI program, to create his work. Ultimately, the Copyright Office, noting that copyright protections are not extended to AI, concluded that parts of the work that Allen modified with Adobe amounted to original work that could be protected, but that other parts of the art that were generated solely by AI could not be copyrighted.

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Walking with a rulebook into the new epoch of efficiency

Seventy-one percent of respondents, of an Adobe survey, said that they think using the Generative AI, to try on products virtually, would boost their buying confidence.

Beyond personalisation, Generative AI proves instrumental for fashion brands and retailers across various domains such as merchandising, sampling, product development, trend forecasting, supply chain management, logistics, store operations, consumer experience and marketing. By leveraging the capabilities of Generative AI, the fashion industry can enhance not only individualised interactions but also streamline and innovate numerous aspects of a business, propelling it into a new era of efficiency and creativity.?

However, the industry experts believe there should be a balance between brands and companies using Generative AI to promote efficiency and reduce costs, while also enhancing consumer satisfaction, making AI more inclusive for all and tackling the issue of diversity.

As the retailers integrate AI tools into their businesses, the National Retail Federation has introduced parameters for responsibly doing so. Recently, the NRF has?introduced principles for using AI in the industry, spanning customer engagement and trust, governance and risk management, business partner accountability and workforce applications.

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