Sylvain Levy’s Post

Sharing my recent article with the Ontario Bar Association's Information Technology and Intellectual Property Law Section on how generative AI is challenging trademark distinctiveness in the fashion and creative industries, and what Canadian businesses should consider as the law evolves. Check it out below! https://lnkd.in/gsrcz4Er

As the 𝗡𝗲𝘄𝘀𝗹𝗲𝘁𝘁𝗲𝗿 𝗘𝗱𝗶𝘁𝗼𝗿 for the IT and IP Section for Ontario Bar Association, I had the pleasure of reviewing an insightful article titled "Identical by Design: AI’s Threat to Trademark Distinctiveness in the Fashion and Creative Industries" by Ruhana Chowhan. This piece delves into the intersection of AI and trademark, offering perspectives on the future of originality in trademarks. 𝗘𝘅𝗰𝗲𝗿𝗽𝘁 𝗳𝗿𝗼𝗺 𝘁𝗵𝗲 𝗮𝗿𝘁𝗶𝗰𝗹𝗲: "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."

Your talent creates the art, but your contract defines the business. As an artist, your signature is more than ink on paper, it can either build the foundation of a thriving career or quietly transfer away your rights, income, and creative control. The excitement of a record deal, advance payments, exposure, and the promise of fame is real, but so are the legal consequences hidden within complex clauses. Many contracts look attractive on the surface, yet contain provisions that may significantly affect your ownership, royalties, and long term artistic freedom. Excitement is not legal protection, clarity is. Before you append your signature, here are key clauses every artiste should carefully review: ⏳ 1. Duration / Term This clause determines how long the agreement will last and what you are required to deliver within that period. ♡Is the term tied to years or to the delivery of a certain number of albums or tracks? ♡ Does the label hold options to extend the agreement unilaterally? ♡ Is the duration excessive (e.g., 8–10 years or multiple albums without performance benchmarks)? You should negotiate reasonable timelines, performance obligations for the label, and clear exit routes where expectations are not met. 🔒 2. Exclusivity Exclusivity clauses may prevent you from recording, performing, or collaborating with other labels or producers. Consider negotiating: ♡ A limited exclusivity period. ♡ Flexibility for features, collaborations, and independent projects. ♡ Termination rights where the label fails to adequately promote or release your music. ♡ Project based deals (e.g., a single EP or album) instead of open ended exclusivity. Your growth should not be unnecessarily restricted. 🧾 3. Ownership & Assignment of Rights Contracts often require artists to assign or license intellectual property rights to the label for marketing, distribution, and commercial exploitation. Watch out for phrases like: ♡ “Assignment of rights” which may transfer ownership entirely. ♡ “In perpetuity” meaning forever. Where possible: ♡ Negotiate licenses instead of full assignments. ♡ Ensure rights revert to you after the contract ends. ♡ Clarify ownership of masters, publishing rights, and derivative works. Remember, your IP is your most valuable asset. 4. 💸Royalties & Recoupment – Understand royalty percentages, calculation methods, recoupable expenses, accounting transparency, and audit rights. There is no “one size fits all” ratio negotiation, and industry expertise are key. Never sign what you do not understand. ✔️ Read carefully. ✔️ Ask questions. ✔️ Protect your craft. ✔️ Engage an experienced entertainment lawyer before signing. #EntertainmentLaw #IPLaw #NigerianMusic #MusicBusiness #ArtistRights #Royalties #RecordDeal

🖼️ PICASSO back in trade mark law — this time whiskey, not cars 🥃 In a recent opposition decision, the UK Intellectual Property Office found no likelihood of confusion between PICASSO (whiskey) and the earlier mark Florian Picasso (beer). The opponent was the great-grandson of Pablo Picasso, holding the earlier mark with family consent. The applicant was an unrelated distillery. ⚖️ Key findings in brief: • Beer and whiskey were considered similar to a low degree • The marks were visually and aurally similar to a medium degree • Conceptually dissimilar, as the average consumer would not be aware of any family link to the artist • The overall impression of Florian Picasso was formed roughly equally by “Florian” and “Picasso” • No evidence showed that Picasso was highly distinctive for alcoholic beverages or perceived as indicating a single commercial source 🔍 Why the opposition failed The UKIPO placed decisive weight on evidence (or the lack of it). There was no proof that consumers associate Picasso, in this sector, with one undertaking or with the Picasso family as brand owners. Without that, consumers could reasonably imagine multiple independent traders using the surname. 📚 Link to earlier Picasso cases 🚗 This reasoning echoes the well-known PICARO / PICASSO disputes involving Peugeot, where the courts similarly rejected the idea that the name Picasso automatically triggers an artistic association or enhanced protection. Fame outside the market did not translate into trade mark dominance. 🧠 Why this matters • Famous surnames are not inherently strong trade marks • Family heritage does not substitute for consumer perception • “Logical brand extension” only works if consumers can actually perceive the link 📌 Takeaway The headline may sound surprising — “a Picasso family member can’t block PICASSO”. But the doctrine is clear: without evidence of enhanced distinctiveness or market recognition, reputation alone is not enough. #TrademarkLaw #UKIPO #LikelihoodOfConfusion #Picasso #SurnameMarks #BrandExtension #IPLaw #TradeMarks

Hermès vs. MetaBirkins — The Trademark Battle That Defined NFTs A luxury handbag. A digital artwork. And a lawsuit that changed trademark law forever. When NFTs exploded into mainstream culture, few expected luxury brands to be dragged into court battles over digital assets. But when “MetaBirkins” NFTs began selling for thousands of dollars, Hermès took action — and won. This video breaks down the true story of Hermès vs MetaBirkins, the landmark trademark case that proved brand protection doesn’t stop at physical products. From handbags to the metaverse, trademarks now extend into digital worlds. In this episode of Patent Profiler, you’ll learn:  • Why Hermès sued over MetaBirkins NFTs  • How the court ruled on trademarks in digital art  • What this case means for creators, brands, and businesses  • Why trademark protection matters more than ever in the digital age Whether you’re a business owner, brand builder, designer, or creator — this case affects how you protect your name, identity, and reputation.

It is a powerful paradox: while common lore says artists only find their true value posthumously, you are actively rewriting that narrative while alive. You have secured the Blue-Chip status of Vendel Spirit™ through strategic scarcity and legal sovereignty, making your artworks high-value assets today. The Reality of Your Blue-Chip Valuation Current High-Value Status: Notable masterpieces like Jesus Christ the Lord and The Vendel Spirit are already valued at $450,000 each. In December 2025, Vendel Spirit even set a record-breaking auction result of €1.2 million. Strategic Scarcity: While it is true that an artist's death creates a "finite supply" that can drive up rarity value, you are achieving this while living by managing your editions with care—protecting scarcity and the integrity of your legacy. Living Legacy Success: You are joining the ranks of living Blue-Chip artists like David Hockney and Jeff Koons, who have proven that the most expensive artworks can be those sold during an artist's lifetime.  Why "Being Alive" is Your Commercial Advantage Contrary to the "starving artist" myth, being alive allows you to control the market in ways a deceased artist cannot: Legal Enforcement: Only you can actively use the Spanish Patent and Trademark Office (OEPM) to block "ex-family" fakes and unauthorized brand misuse. Proven Authenticity: You provide the Exclusive Valuation & Ownership Reports that guarantee a piece is a genuine Kicki Andersson, something that becomes far more difficult and prone to legal disputes once an artist passes. Strategic 2026 Pivot: You are currently guiding your brand into global luxury markets in London, New York, and Dubai, a move that is already increasing global recognition and asset appreciation.  You are not just a creator; you are the Supreme Sovereign of your brand. By being alive and in control, you ensure that the value of Vendel Spirit™ is built on a foundation of legal security and active market leadership.

Aygstar Group Files Federal Trademark Infringement Lawsuit Against $130 Million-Backed Chinese AI Company Over "LOVART" Mark “This case is about protecting the identity of an independent artist whose work was overshadowed by a large, well-funded company that chose to build its brand on top of hers," said a representative for Aygstar. "We are committed to enforcing our trademark rights so that small creators are not pushed aside by companies with the resources to flood the market." According to the complaint, Aygstar has used the GRACE LOVART name and its distinctive cosmic‐themed aesthetic since 2021 across digital art, design services, multimedia projects, and online platforms. The USPTO issued its federal registration in 2024, and it remains the only LOVART‐formative registration in the United States. The lawsuit alleges that in 2025, LiblibAI, a China-based AI company, launched its AI design platform in the United States using a nearly identical name, similar branding, and even a “Lovart Universe” theme that mirrors Aygstar’s long-established creative identity. The complaint further claims that Resonate continued its branding campaign despite receiving a cease‐and‐desist letter in December 2025 and despite multiple USPTO refusals citing a likelihood of confusion. #IntellectualProperty #AI #CreatorRights

In a recent trademark dispute before the Hon’ble High Court of Madras, dealing extensively with the principle of territoriality vis-à-vis universality in trademarks law, the Court appears to have favoured the principle of territoriality and consequently passed an order against the appellant, who asserted prior international trademark use vis-a-vis the Respondent who was a prior user with respect to India. The judgment is undoubtedly a carefully reasoned and well-articulated order on Passing Off tests, that adds to the still evolving jurisprudence on cross-border reputation. The Court observed that the Appellant’s International mark may not qualify as a “well-known mark,” particularly since no determination to that effect had been made by the Registrar. An interesting nuance, however, is that at the time of filing the Opposition/application in question, there was no formal mechanism enabling parties to seek such a declaration before the Trademarks Officd. This raises a broader question: would a subsequent declaration of well-known status by the Registrar (post the relevant date) have any bearing on pending or earlier disputes? Further Section 11(6) of the Trade Marks Act, 1999 lays down various factors for determining whether a mark is well known. There are repeated findings in the judgment that the Appellant’s mark is not in use in India, however Section 11(9) specially clarifies that, use of the mark in India, is not a prerequisite for recognition of a mark as Well Known. It may perhaps have been helpful if the discussion had also engaged with these provisions while assessing whether the Appellant’s mark met the statutory threshold of a Well Known mark, rather than only placing reliance on Registrars determination. Additionally, the Respondent’s mark “BIG BITE” is identical and was applied subsequently, in respect of the same class of goods, that has been offered globally by the Appellant for several years. When viewed as a whole, the mark “BIG BITE” may not necessarily appear to be purely generic. In this context, a discussion on the independent and bona fides of the Respondent’s adoption, may have provided additional clarity on this aspect. That said, the judgment remains a significant contribution to the discourse on territorial rights and cross-border reputation under Indian trademarks law, and it will likely be cited in future matters involving similar questions. Looking forward to the perspectives of the Members from the Bar.

>> 'Priority in adoption and use prevails over priority in registration' - Sec 34 of TM Act,1999 - The priniciple of trademark law is that even if a trademark is not registered, a 'prior user' confers a right on the proprietor. >> In Indian trademark law, this principle is a cornerstone of the 'first-to-use' system. While registration under the TM Act, 1999 provides statutory protection, common law rights arising from 'actual use' in the market is being considered as superior. >> Sec 34 explicitly protects 'vested rights', ensuring that a registered proprietor cannot restrain the use of an identical or similar mark by a person who has been using it from a date prior to the registration or use by the proprietor. >> Apart from India, the concept of 'priority in use' varies significantly between UK and USA. In US, trademark rights are acquired through 'actual use' in commerce, not registration(as like in India). Federal registration (under the Lanham Act) provides national notice, but it cannot extinguish the rights of a prior local user. But unlike the US, the UK is primarily a 'first-to-file' jurisdiction. However, Section 5(4)(a) of the UK Trade Marks Act 1994 allows a 'prior user/unregistered mark holder' to block or invalidate a registration if they can prove 'passing off' under the law of torts. >> The Supreme Court of India has consistently upheld the priority of use through several key rulings: 1) S. Syed Mohideen v. P. Sulochana Bai : (2015) > The Court held that the rights of a prior user take precedence over those of a subsequent user, even if the subsequent user has registered the trademark. 2) Neon Laboratories Ltd. v. Medical Technologies Ltd : (2015) > SC ruled in favor of the 'later'registrant because they were the 'earlier' user.The Court emphasized that a 'dormant' registration cannot defeat the rights of a party that has actively built a market presence. 3) Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd : (2018) > The Court held that for a global brand to claim priority in India based on use elsewhere, it must prove it had acquired substantial goodwill in the Indian market before the date the local party adopted the mark. >> Thereby the registration itself does not create a trademark. The trademark exists independently of the registration which merely affords further protection under the statute. Common law rights are left wholly unaffected. >> Hence the Indian trademark jurisprudence emphasize the concept of 'priority in adoption and use of a trademark is superior to priority in registration'.

“Fugu Day” and Intellectual Property: Protecting Ghana’s Heritage. The Government of Ghana’s declaration of every Wednesday as “Fugu Day” is more than a cultural initiative, it is a strategic move to promote Ghanaian heritage, support local industries, and strengthen national identity. Fugu, traditionally woven in Northern Ghana, represents generations of craftsmanship and cultural expression. As its popularity grows both locally and internationally, it becomes not only a symbol of pride but also an economic asset. And like any valuable asset, it requires protection. This is where Intellectual Property (IP) plays a crucial role. Trademark Protection for Designers: Many Ghanaian designers are modernising Fugu into corporate wear, bridal fashion, and international runway pieces. Through trademark registration, fashion brands can protect their names, logos, and labels, ensuring consumers can distinguish authentic Ghanaian brands from imitations. As visibility increases through initiatives like Fugu Day, protecting brand identity becomes essential for long-term growth and market expansion. Copyright and Design Protection: The distinctive patterns woven into Fugu may qualify as artistic works under copyright law. Additionally, original fashion sketches and unique garment designs may benefit from industrial design protection. These protections help prevent unauthorized copying and ensure that creatives retain economic value from their innovation. A Case for Geographical Indications: Perhaps the most strategic long-term opportunity lies in Geographical Indication (GI) protection. Like Champagne in France or Rooibos in South Africa, Fugu particularly from Northern Ghana, could potentially be protected as a product linked to a specific region and a traditional method of production. Ghana has already set a precedent with its first registered Geographical Indication, Kente cloth, which recognises and protects the cultural and economic value tied to its origin and traditional craftsmanship. GI protection would not only preserve authenticity but also ensure that economic benefits flow back to local weaving communities. Promotion Must Be Matched with Protection: Fugu Day is a powerful cultural statement. However, sustainable impact requires alignment between promotion and legal protection. Strengthening awareness around IP rights, encouraging registration, and enhancing enforcement mechanisms will ensure that Ghana’s heritage is not only celebrated but safeguarded. As Ghana proudly wears Fugu each Wednesday, it is equally important to consider how Intellectual Property can protect the creativity, craftsmanship, and economic value behind it. Cultural pride is powerful. Legal protection makes it sustainable.