This article builds on Part 1 of our three-part series on protecting AI-generated avatars, where we discussed how avatars used on platforms like YouTube and TikTok can function as trademarks. Here, we take the next step and examine how those rights are actually secured through USPTO filings, including class selection, specimens, and licensing considerations tied to AI tools.
Once an AI avatar is functioning as a brand identifier, the next question is how to protect it properly. That means understanding how trademark filings actually work at the USPTO.
Depending on use, creators may be able to trademark:
- The avatar’s image or design (as a logo or character mark)
- The name of the avatar
- Entertainment services associated with the avatar
- Merchandise bearing the avatar
The key requirement is use in commerce, not authorship.
Common Trademark Classes for Avatar Brands
While every filing is fact-specific, AI avatar creators frequently rely on:
- Class 41 – Entertainment services (online video content, digital media channels)
- Class 25 – Apparel and wearable merchandise
- Class 9 – Downloadable digital content, digital goods, or NFTs
- Class 35 – Influencer marketing or promotional services
Many creators file in multiple classes to align with current revenue streams and future expansion.
The USPTO requires proof that the mark is actually being used before registration can be permitted. Strong specimens (e.g. proof of use) include:
- YouTube or TikTok profile pages showing the avatar as branding
- Video thumbnails where the avatar clearly identifies the channel
- Merchandise product pages using the avatar as a brand element
- Websites where the avatar appears in headers or service descriptions
The avatar must function as a source identifier (indicating the brand owner or where to purchase the product or service), not mere decoration. The nature of the products and services must also appear on the specimen. If using website screenshots, more than one page of the site may be needed to include all the required information.
Before filing, creators should confirm that the AI tool used to create the avatar:
- Permits commercial use
- Allows trademark registration
- Does not restrict exclusivity or licensing
Some platforms allow monetization but prohibit trademark claims, which can seriously undermine protection if ignored. Not all AI image-generation platforms give creators full commercial freedom, and some popular tools include contractual restrictions that can impact trademark strategy. For example, a number of widely used avatar-creation and generative art models expressly permit personal or non-commercial use but reserve certain rights for the platform or community, or prohibit users from asserting exclusive trademark rights over content generated on the service. In some cases, terms of use grant the platform itself a broad license to use or sublicense generated outputs, limit exclusivity, or require adherence to specific attribution language—clauses that can conflict with the premise of owning a distinct mark that consumers associate uniquely with a single creator. This is especially important when an avatar is intended to function as a brand identifier: if the underlying license imposes use-restrictions, precludes exclusive commercial use, or allows others to freely generate confusingly similar content, the legal foundation for trademark ownership may be weakened. Before filing with the USPTO, creators should review the terms of any AI tool used to generate avatars or branding elements and confirm that those terms do not prohibit commercial exploitation or limit exclusive rights, and, if needed, seek alternatives or negotiate custom licensing that aligns with trademark goals.
With proper clearance, class selection, and specimens, AI avatars can be trademarked just like traditional logos or characters. The key is aligning the filing with how the avatar is actually used in business and ensuring that the AI tools allow for trademark registration of the generated AI content.
In Part 3 of this series, we turn to enforcement—how trademark rights in AI-generated avatars can be used to stop copycat accounts, knockoff merchandise, and impersonation across digital platforms.
If you any questions about trademarking AI generated content, reach out to Tracy at Tjong@EvansFox.com.
Tracy Jong is a Senior Attorney at Evans Fox LLP with 30 years of experience focusing her practice in business law, intellectual property and licensing for alcohol and cannabis. Tracy Jong is a member of the New York Bar and is a registered attorney at the United States Patent and Trademark Office. She can be reached at Tjong@EvansFox.com.
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The content has been prepared for informational purposes only; it should not be construed as legal advice, does not create or constitute an attorney-client relationship, and readers should not act upon it without seeking professional counsel.