In 2022, the MARQUES IP Emerging Issues (IPEI) Team prepared an article on brand control in product and packaging personalisation through user-generated content. This article was never published. What seemed like an emerging issue at the time has resurfaced as the Team revisited the very concept of defining an "emerging issue”, just when the world outside the IP realm felt more unpredictable than ever, as Team Chair Marion Heathcote explains.

AI and large language models are reshaping industries and legal frameworks at an unprecedented pace, and intellectual property is no exception. As a result, even articles written just a few years – or even months – ago now demand a fresh look to ask: "Does this still hold true today?"

Instead of updating the original text, on review the current IPEI Team wanted to publish Michal Hasiow’s original text as it was first drafted, thus allowing the extent of change to speak for itself while leaving space for alternative interpretations.

AI and personalisation

At first glance, AI seems to offer a perfect solution for personalisation challenges. It can automate content moderation, filter harmful language and deliver dynamic customer experiences with ease. By processing vast amounts of data and responding to customer inputs in real time, AI enables seamless, adaptive personalisation.

Yet, while AI enhances efficiency, it also introduces new challenges. Automated systems are far from flawless, and the risk of over- or under-filtering remains, particularly when navigating different languages and cultural nuances. AI also raises ethical concerns of potential biases, while the opacity of its decision-making process complicates accountability. Ironically, the very tools designed to prevent misuse may create unforeseen problems for brands. A “hybrid approach” that blends AI with human oversight seems crucial for managing these risks, ensuring personalisation remains both effective and ethically responsible.

But what if technology could go even further – shifting brand personalisation away from user-generated content and toward dynamic trade marks? In this model, brand owners, not consumers, would retain control, personalising branding in real-time based on consumer behaviour, preferences and contextual data.

Logos would adapt, dynamically changing colour, thickness, placement, patterns and motion effects in response to a person’s age, gender, shopping habits, fitness data or location. Instead of users crafting their own versions, brands, powered by AI, would handle the personalisation – offering a seamless yet controlled experience.

After all, if AI understands us better than we understand ourselves, why not let it handle our purchasing decisions entirely? But what would this mean for trade mark law?

Navigating the pitfalls of brand control in product and packaging personalisation – the 2022 edition

“In my own market research for dozens of Fortune 500 companies, I have found that the best way to communicate authenticity is to trigger personalization. Do audience members see themselves in the slogan… and therefore in the product? Unfortunately, achieving personalization is by no means easy” (Words That Work: It's Not What You Say, It's What People Hear by Frank Luntz)

Brands are increasingly allowing consumers to personalise their products and packaging, reflecting a growing consumer demand – especially among millennials and Gen-Z – for tailored experiences. According to a 2019 Deloitte study, this shift is part of "The rise of mass personalization”, while Bain's research highlights how customisation can boost sales, enhance loyalty, and help brands better target specific consumer segments.

However, as the benefits are clear, the risks are equally significant. Personalisation through user-generated content often means relinquishing some degree of control over a brand’s identity. Allowing consumers to tinker with the brand’s image opens the door to unforeseen consequences, including the potential for offensive or damaging content. For brands, this underscores the importance of defining boundaries upfront – perhaps through a well-crafted personalisation policy – to help mitigate these risks while still offering the appeal of customisation.

Say it with a sneaker and say it loud!

Personalisation aims to enhance consumers’ sense of uniqueness and individuality. However, a product designed “just for you” is often shared with others. Thanks to social media, even short-lived products such as personalised cereal boxes or marmalade jars can be shared widely, sometimes reaching millions, with brands’ active encouragement.

While a customer's choice of mismatched colours for sneakers may cost them a few followers, it generally won’t harm the brand. But what about a photo of the same sneakers with a racist term embroidered on them, posted and shared thousands of times? Or what if a consumer adds a competitor’s logo to an already branded product?

These scenarios are a nightmare for IP counsel, as they can’t always be addressed through traditional enforcement or communication methods. With customers having the power to shape brand narratives, how can brands regain control once it’s been loosened?

Find out more in the second part of this article, available soon.