· An article by Dr. Norman Dauskardt

Protection options at a glance

Many companies today generate logos, campaign visuals, product designs, icons and brand names with generative AI. As soon as this becomes an economically relevant branding element, a simple but consequential question arises: Who actually owns this output – and can competitors be prohibited from adopting or even imitating it?

The answer does not depend on whether AI was involved, but on which protection regime applies. Four levers with very different requirements come into consideration: copyright, trade mark law, design law and protection against imitation under the German Unfair Competition Act (UWG).

Copyright is the economically most attractive protection right: It arises automatically upon creation, without registration and without costs, the so-called creator principle Section 7 UrhG. The rightholder can control uses, license them for remuneration and enforce injunctive relief and damages in the event of infringements. It is precisely this controllability that makes creative work exploitable, Sections 15 et seq. UrhG, Sections 31 et seq. UrhG, Section 97 UrhG.

There is no special rule for AI content in the UrhG. The decisive provision remains Section 2(2) UrhG: What is protected is the work as a personal intellectual creation. The key question is therefore whether the output is an intellectual achievement of a human being. The use of AI as a mere tool does not preclude this from the outset – it depends on how strongly the human contribution shapes the output.

The starting point: Purely generative output is unprotected

The courts are now drawing the line clearly. Whoever generates an image solely through prompts regularly does not yet create a protected work.

The Düsseldorf Higher Regional Court confirmed in April 2026 (judgment of 02.04.2026, case no. I-20 W 2/26 – "Underwater Dog") that purely machine-generated output in principle enjoys no copyright protection. The Munich Local Court (judgment of 13.02.2026, case no. 142 C 9786/25) takes the same line.

In practical terms, this means: Freely imitable AI output is the rule, not the exception – with the uncomfortable consequence that competitors may generate the same or similar visuals as long as they do not infringe third-party protection rights.

When protection is nevertheless conceivable

Copyright protection of AI output only comes into consideration if the human contribution dominates the output and the personality of the creator is reflected in the result.

The Düsseldorf Higher Regional Court formulates the standard as follows:

*"Copyright protection is therefore conceivable as a result of human intervention in AI results, which can also take place subsequently or successively during prompting and which leads to the output reflecting precisely the personality of the prompter."

What matters is that the creative decision shapes the output in a clearly identifiable way – and it is precisely for this that whoever relies on the protection bears the burden of substantiation and proof.

It follows that copyright protection is conceivable in particular in the following constellations:

Substantial post-editing.
Where raw AI output is substantially further shaped – through retouching, composition, layout work – the combination of generation and human further design can give rise to an exclusive right.

Protected human components remain protected.
The Frankfurt am Main Regional Court (judgment of 17.12.2025, case no. 2-06 O 401/25 – "partially AI-generated song") clarified that song lyrics demonstrably written by a human do not lose their protection as an independent literary work because the music is generated by AI (here: SunoAI). Whoever distributes the entire track without permission infringes the continuing protection of the lyrics. In the preliminary injunction proceedings, an affidavit sufficed to substantiate human authorship.

In addition, the prompt itself may have the character of a work as a linguistic-conceptual achievement.

By contrast, copyright protection is not available for:

  • generally worded, open-ended prompts – even in large numbers and iteratively;
  • the mere selection from several AI suggestions;
  • time spent and diligence taken by themselves.

The rule of thumb:
Whoever prompts is not yet an author. Copyright only applies once the personal creation is expressed in the output.

Documentation is everything

Anyone wishing to claim protection must be able to evidence their creative contribution – prompts, iteration steps, manual edits. Whoever generates purely generatively must live with the fact that others can produce the same content.

You use AI content commercially and are unsure whether your output is protected? Schedule a free initial assessment.

Alternative I: Trade mark protection

Where copyright does not apply, trade mark law is the obvious lever. It does not turn on the question "AI or not AI?", but solely on the distinctiveness of the sign: Is the output capable of distinguishing the goods or services of one undertaking from those of others? An AI-generated name or an AI-generated logo is thus in principle capable of trade mark protection if it serves as an indication of origin.

Registration with the DPMA or EUIPO confers an exclusive right of use for the registered classes of goods and services, initially for ten years and renewable indefinitely. What must be filed is the concrete representation – not, at will, all visuals of a campaign. The advantage lies in enforceability: The registration certificate and the register extract provide formal proof of ownership, statutorily underpinned by injunctive relief and damages claims. Strong trade marks are, moreover, assets that can be recognised on the balance sheet.

General information on trade mark registration can be found in our article here.

The tricky point: distinctiveness

The practical sticking point is distinctiveness. The decisive question is not "Does the logo look good?", but "Does the public recognise in it an individualising indication of the undertaking?". Generic, descriptive or industry-standard signs are not registrable – and experience shows that AI delivers precisely such obvious results. That is the real hurdle.

In the registration procedure, the DPMA does not examine whether earlier third-party rights conflict. Conducting your own search is therefore essential – "looking new" does not mean "legally free". And the priority principle applies: Whoever files first holds the earlier priority. Speed counts.

You want to secure an AI-generated logo or a brand name? We handle search and registration. Get in touch.

Alternative II: Design protection

If the result is not suitable as an indication of origin but is "merely" a design worthy of protection – a campaign visual, packaging, an icon, a pattern – the registered design comes into consideration. Covered is any two- or three-dimensional appearance, expressly including graphic symbols; software-generated graphics are permissible as a representation.

Requirements

The requirements are novelty (no identical or only insignificantly differing design may have been made available to the public before the filing or priority date) and individual character (the overall impression must differ from known designs from the perspective of the informed user). A particular level of creativity is not required. For your own prior disclosures there is a twelve-month novelty grace period – but the rule of thumb remains: file as early as possible. The term of protection is initially five years, renewable up to a maximum of 25 years.

Advantages

Design protection is a fast, comparatively inexpensive registered right. It protects the concrete visual design, is independent of classes and free of any use requirement – and is therefore often sensible in parallel with or ahead of a trade mark application, to secure the design while the trade mark position is still open. A logo can be protected in parallel as a trade mark and as a design. In the event of infringements, there are claims for injunctive relief, destruction and damages; in certain circumstances the unregistered EU design applies even without registration.

The most practice-relevant lever: protection against imitation under Section 4 No. 3 UWG

If no registered right exists and copyright does not apply either, what remains is protection against imitation under unfair competition law pursuant to Section 4 No. 3 UWG. It grants no "right in the AI output" but protects against unfair market conduct – and in practice is often the fastest lever, for instance when a competitor adopts an entire campaign, a packaging design or a visual brand language.

What is prohibited is not imitation as such, but imitation under unfair circumstances. The requirements are a competitive relationship and the distribution of the imitation, the competitive individuality of the original, an identical or nearly identical imitation, and an element of unfairness – in particular deception as to origin, exploitation of reputation or dishonest acquisition of knowledge. An interdependence applies: The higher the competitive individuality, the lower the requirements for the elements of unfairness. Not protected, by contrast, are abstract ideas and mere advertising or sales concepts – only the competitively individual product is covered, and even this only where particular circumstances of unfairness are present.

A competitor is adopting your design? We examine claims and issue cease-and-desist letters. Contact us for a free initial assessment.

Conclusion: Protection does not arise by itself

Anyone using AI output commercially should not treat it as self-evidently "their own" content. For practice, the following line is recommended:

  • Copyright is the strongest but most uncertain right. It only applies where the human contribution dominates – and only if it is documented. Prompts, iterations and edits should be recorded from the outset. Purely generative output is regularly freely imitable.
  • Trade mark and design protection are the more reliable routes for central branding elements. They render the question "human or AI?" irrelevant and create enforceable exclusive rights. Because of the priority principle and the absence of an official clearance examination: search first, then file early.
  • Section 4 No. 3 UWG is the practice-oriented fallback lever against the adoption of entire designs by competitors – even without a registered right, but only where competitive individuality and unfair accompanying circumstances exist.

Whoever decides early which regime should secure the economically relevant content retains control over their branding. Whoever fails to do so risks elaborately created content remaining freely copyable.

You use AI in marketing or product design and want to secure your content in a legally sound way? We examine which protection regime applies in your case, handle search and registration and enforce your rights against imitators. Get in touch.

FAQ

1. Do I own the logo I created with AI?
Not automatically. Purely generative AI output regularly enjoys no copyright protection. You achieve reliable protection through a trade mark or design application – regardless of whether AI was involved.

2. Is a particularly sophisticated prompt sufficient for copyright protection?
As a rule, no. Even numerous or iterative but generally worded prompts do not give rise to protection under current case law. What matters is that a personal creative decision is discernibly reflected in the output.

3. Can I protect AI output as a trade mark and as a design at the same time?
Yes. A logo can be protected in parallel as a trade mark and as a registered design. The design quickly secures the concrete appearance independently of classes; the trade mark secures the indication of origin for specific classes.

4. Do I have to document my prompts and editing steps?
If you want to claim copyright protection: absolutely. The burden of substantiation and proof for the human creative contribution lies with you. Recorded prompts, iterations and manual edits are the decisive evidence in a dispute.

5. May a competitor simply adopt my AI visual?
Possibly yes, if no registered right and no copyright protection exist. However, if Section 4 No. 3 UWG applies – competitive individuality plus unfair accompanying circumstances such as deception as to origin or exploitation of reputation – you can take action against the adoption.

6. What should I do first?
Search, then file early. Because of the priority principle and the absence of an official clearance examination, speed is often decisive. A brief initial assessment clarifies which protection regime applies in your case.