ABSTRACT
Throughout history, artists have copied others’ styles. Today, generative artificial intelligence (AI) has made it trivially easy for anyone to produce images, songs, or other creative works ‘in the style of’ virtually any remotely well-known artist. As AI-generated content floods the market – from Kusamastyle polka-dotted mugs on Etsy to Miyazaki-style family portraits – courts are beginning to confront an unanswered question about trademark law: When can artistic style itself be protected as a trademark? We speak, informally, of artists having a ‘trademark style’, but courts and legal scholars have not yet addressed whether, when, and the extent to which an artist’s style receives trademark protection.
In this Article, we argue, as a threshold matter, that artistic style is eligible for trademark protection. Trademark law will, in limited circumstances, recognize what we call ‘style marks’ – marks that consist of collections of aesthetic design features that have become uniquely associated with particular artists or companies. However, our examination of the extent of trademark protection for style marks reveals that the vast majority style mark claims will ultimately fail. This outcome is substantively aligned with trademark law’s purposes of promoting fair competition and preventing consumer confusion. But, practically, courts will have to work through numerous multi-factor tests, at each stage of the trademark lifecycle, to eliminate meritless claims. That’s because trademark law currently lacks a clear doctrinal tool for courts to eliminate weak style mark claims early in litigation. The inefficient litigation of style mark disputes carries consequences at odds with trademark law’s pro-competitive goals and a robust culture of creative expression.
There are at least three possible ways courts could respond to this problem: (1) Do nothing; (2) Rely on an existing trademark doctrine to screen most claims; or (3) Adopt a new, tailored screening mechanism. We suggest courts adopt a new, two-part screening mechanism that is consistent with trademark law’s goals and current doctrines. First, courts should bar ‘art-for-art’ style mark claims, limiting plaintiffs to ‘art-for-product’ assertions. Second, courts should deny style mark claims against defendants’ artistic products or services. These rules would confine style mark protection to cases where plaintiffs use style as a mark for non-art goods against defendants’ use of that style on non-art goods.
Buccafusco, Christopher J and Mazzurco, Sari, Style Marks (February 1, 2026), University of Chicago Law Review forthcoming 2027; SMU Dedman School of Law Legal Studies Research Paper No 723.
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