Are businesses

even asking the

right AI questions?

Dan Gardner

Dan Gardner

Co-Founder and Exec Chair, Code and Theory Co-Founder, ON_Discourse

Dan Gardner

Dan Gardner

Co-Founder and Exec Chair,
Code and Theory Co-Founder, ON_Discourse

This article is part of The Intelligently Artificial Issue, which combines two big stories in consumer tech: AI and CES.

Read more from the issue:

USER EXPERIENCE

Augmented Intelligence: from UX to HX

Will prompting replace browsing?

The car is the gateway drug to a voice-first acceleration

The prompt interface needs a redesign

RE-ORG

AI will brainstorm your next reorg

Expect fewer managers and direct-reports

AI is too immature for your business

AI is not a new revolution

BRAND

Should we ignore the hardware?

Can AI help consumers love your brand?

Your brand doesn't have enough data for AI

Can LLMs be optimized like search results?

Good brands will integrate more friction into their CX

The AI landscape is changing quickly. So quickly that as soon as we think we’re starting to understand its power, there seems to be another giant leap forward. It doesn’t help that we are surrounded by fake AI experts who claim to have all the answers.

This article is part of The Intelligently Artificial Issue, which combines two big stories in consumer tech: AI and CES.

Read more from the issue:

For real customer insights, ask fake people

Should we ignore the hardware?

Truthfully, given all the unknowns, there are more questions than answers today. Each question has a cascading impact on other questions and seems to only bring a series of new questions. The answers right now are only guesses, predictions at best based on hopefully thoughtful reasoning, meant to provide a productive discourse that drives perspectives and decision-making. Any verifiable answers will only reveal themselves tomorrow.

From the editor: The takes below are based on a projection toward the end of the 2020s and are intentionally opinionated and incomplete. We aim to go deeper on each question in future content and at future events, including via ON_CES.

01

What is the future of

SaaS and BI tools?

Today, businesses use siloed tech with a questionable data strategy.

Tomorrow, the SaaS ecosystem will consolidate into very few companies.

Companies of all sizes currently rely on a fragmented ecosystem of technologies. BI tools are siloed not due to the tech itself, but due to a lack of data strategy and organizational structure. People own different elements of the chain (separate teams own social, the web, and so on). This has given discreet software companies the opportunity to solve specific use cases.

The global SaaS market is projected to grow from $273.55 billion in 2023 to $908.21 billion by 2030. In the past decade, marketing software alone has grown from 150 tools in 2011 to 11,038 tools in 2023. There is a high likelihood that the ecosystem could consolidate, eliminating the opportunity and the role of discrete software systems.  

One of the core advantages of AI is its unique ability to assess, simplify, and make sense of large amounts of information. By making sense of data, AI can communicate more easily and effectively given the simplified semantic interfaces, a previous pain point for large consolidated systems.

Since the advent of ChatGPT, we’ve seen a gold rush of companies using LLMs to change the way we process, communicate, and execute decisions. This technology is evolving so quickly that we could see it swallow the companies being built upon it. This should lead to fewer, but better, SaaS and BI tools, bringing up other questions about how companies differentiate themselves and the role of humans.

02

How do we make

AI safe for businesses

to use?

Today, businesses are worried about protecting their IP and potential copyright lawsuits, moral issues, and reputational problems.

Tomorrow, businesses will rely on new legal and procedural precedents to use AI tools liberally.

There is legal precedent, there is enforcement, and there is public opinion.

Firstly, legal precedent (including regulation and policy) will naturally unfold and become clearer. One can make some guesses and predictions here, but ultimately, for competition to thrive, the laws will have to allow for some liberal use of the technologies. This can and will be argued, but it’s a fool’s game to think you can regulate away technological progress.

Secondly, as legal precedents are set, challenges will surface around identification and consequences for any wrongdoing. These will need to be policed at some level and possibly even enforced by code. Could smart contracts on the blockchain protect and enforce IP rights? Additionally, industry collectives like the RIAA, which in the early 2000s protected music IP, may form to make examples of companies and individuals breaching legal boundaries. Alternatively, AI tool use could become so common that courts won’t even consider lawsuits regarding copyright, trademarks, and reputation (although this is hard to imagine).

Lastly, public opinion could shape business use cases. Is there a risk of bias? Does a brand face risks when it represents something inaccurately or inappropriately using AI that it didn’t control? It’s hard enough to manage scaled public relations in a world where an executive is one tweet away from being fired or losing trillions in market value. We are entering a world in which ephemeral content is generated in seconds. Brands may struggle to keep up. Organizations will need to manage AI health just like they do cybersecurity.

03

How do we make

AI safe for people?

Today, businesses own people’s personal data.

Tomorrow, businesses will offer identity protection technology.

Regular audits of public companies not only verify the accuracy and legality of their financial records but also assess whether an organization has adequate controls and processes in place to mitigate potential liabilities. Future regulations may require audits on AI tools to make sure companies are operating legally, including via people controls and by reviewing code.

The government or businesses may also offer trust systems that let people authenticate their identities to interact as themselves with public and private sector services.

Alternatively, people may try to circumvent any potential censorship or gating by masking their identities.

04

Is your

competitive landscape

being

disrupted?

Today, businesses try to understand their direct competitors.

Tomorrow, businesses will be able to analyze their indirect competitors and existential threats.

AI-powered analysis tools could soon ingest data about every market globally and make connections between businesses, causing entire industries to disappear. Businesses could leverage AI to be predictive and anticipatory, uncovering opportunities that disrupt categories they never considered entering. Super apps that can do everything are a real threat.

Alternatively, categorical disruption may not happen because businesses will train AI tools on proprietary data to maintain their competitive advantage. The role of a brand will thus still matter because companies that are more focused on designing a specific user experience will be able to continue to differentiate themselves by providing unique value, while non-focused competitors won’t.

05

What is the future of

customer experience landscapes?

Today, businesses rely on traditional personalized targeting, information architecture, and rigid user flows.

Tomorrow, businesses will rely on anticipatory semantic and potential ephemeral experiences to target behaviors.

Is the interface that consists of a simple prompt text box with a response field here to stay? Or, will interfaces across various devices foresee what humans want, need, and desire, showing only the information that is relevant to users, when and where it’s required? Instead of you prompting the interface, maybe the interface will prompt you.

AI models may be able to help companies better understand their customers, viewing each one as a whole person and generating for them a more efficient, frictionless, and possibly ephemeral, experience in real time. This could include entertainment, marketing generated to pique interest, and interface elements like CTAs and drop-downs built in real time.

Alternatively, humans may not want generated content or experiences and will opt for more directed, but still personalized, user experiences.

06

What is the future of

branding?

Today, businesses build brand identities based on static logos and brand books.

Tomorrow, businesses will build brands whose attributes can be generated on the fly based on an identity that more closely resembles a human.

Brands in the future will have to act in real time. AI will be on the front lines across touchpoints, communicating dynamically with customers. The way a brand communicates at those digital moments will largely represent the whole brand.

It’s also conceivable that ad units will evolve into more dynamic product placements or other unique constructs as the world pivots to where audiences are engaging. The interactions will seemingly be more human and therefore branding will need to be more lifelike, built into a framework that can make its own decisions.

Conversely, brands could lose meaning because every business can just mirror back to people what they want, in real time.

07

Does

authenticity matter?

Today, a brand brings authenticity.

Tomorrow, ownership will be more important than authenticity.

Companies are grappling with when and how to be transparent about their use of AI tools. As AI becomes the baseline, companies that own everything they do will stand out. They may be able to build authenticity by unapologetically using AI to offer their customers what they need and want.

The key attribute will be ownership. Whether a piece of content is a deepfake won’t matter if you own the rights to use a given name, image, or likeness. How you create the content won’t be controversial. Ownership will be a core defining factor of both uniqueness and differentiation for a brand.

One could argue that a brand will be even more valuable in the future as a lot of the market consolidates and aggregators become makers. That said, ownership and uniqueness may become harder to achieve, and unique rights might become more expensive.

08

Should a business

invest quickly or slowly

in AI?

Today, businesses either invest too slowly and leave themselves open to disruption or too quickly and spend wasted capital.

Tomorrow, the landscape will be defined by where the opportunity and need for investment is.

Businesses recognize the importance of AI but often overspend due to a fear of falling behind. Despite the influx of ever-improving tools, there’s a noticeable redundancy in these so-called “innovative” ideas, hinting at future industry consolidation. On the flip side, inaction poses its own dangers, potentially leading to business stagnation and loss of a competitive edge.

Businesses should do two things immediately: build and invest in a data strategy and create a culture of safe experimentation with AI tools. The barrier to entry is surprisingly low.

09

What will

define creativity

in the

future?

Today, businesses define creativity as a skill.

Tomorrow, businesses will define creativity only in the way humans think, not what humans can do.

The advent of generative AI could fundamentally transform how we value skills, pivoting from the traditional execution of skills to an emphasis on analytical and creative thinking. The necessity for manual skills in drawing, writing, or designing may diminish, as generative AI democratizes these abilities.

Furthermore, the reliance on human intuition for decision-making could shift toward AI-driven insights and analyses, processed rapidly and impartially. This change might render prompt engineers obsolete, as AI chatbots take on the burden of generating complex prompts.

This shift could lead to a scenario where digital content and experiences are ephemeral, created spontaneously by AI, potentially reducing the significance of human creativity in producing “things." Creativity might then be seen as a common resource, easily replicable and valued less.

Conversely, the future of business creativity might lie in the ability to innovate without relying on data or existing knowledge. Human distinctiveness could emerge through the generation of novel ideas, fueled by uniquely human emotions, such as passion and envy. In this scenario, genuine creativity could become rarer, yet significantly more treasured.

Final
Thoughts

AI is going to shuffle the deck of what companies do and provide, changing the competitive landscape and ultimately the workforce. Some changes will be obvious, like new forms of creative workforces, but others won’t be, like new types of departments, roles, and C-level officers around ethics, identity, and customer safety.

Are businesses

even asking the

right AI questions?

Dan Gardner

Dan Gardner

Co-Founder and Exec Chair, Code and Theory
Co-Founder, ON_Discourse

This article is part of The Intelligently Artificial Issue, which combines two big stories in consumer tech: AI and CES.

Read more from the issue:

For real customer insights, ask fake people

Should we ignore the hardware?

The AI landscape is changing quickly. So quickly that as soon as we think we’re starting to understand its power, there seems to be another giant leap forward. It doesn’t help that we are surrounded by fake AI experts who claim to have all the answers.

Truthfully, given all the unknowns, there are more questions than answers today. Each question has a cascading impact on other questions and seems to only bring a series of new questions. The answers right now are only guesses, predictions at best based on hopefully thoughtful reasoning, meant to provide a productive discourse that drives perspectives and decision-making. Any verifiable answers will only reveal themselves tomorrow.

From the editor: The takes below are based on a projection toward the end of the 2020s and are intentionally opinionated and incomplete. We aim to go deeper on each question in future content and at future events, including via ON_CES.

01

What is the future of

SaaS and BI

tools?

Today, businesses use siloed
tech with a questionable data
strategy.

Tomorrow, the SaaS
ecosystem will consolidate
into very few companies.

Companies of all sizes currently rely on a fragmented ecosystem of technologies. BI tools are siloed not due to the tech itself, but due to a lack of data strategy and organizational structure. People own different elements of the chain (separate teams own social, the web, and so on). This has given discreet software companies the opportunity to solve specific use cases. 

The global SaaS market is projected to grow from $273.55 billion in 2023 to $908.21 billion by 2030. In the past decade, marketing software alone has grown from 150 tools in 2011 to 11,038 tools in 2023. There is a high likelihood that the ecosystem could consolidate, eliminating the opportunity and the role of discrete software systems.

One of the core advantages of AI is its unique ability to assess, simplify, and make sense of large amounts of information. By making sense of data, AI can communicate more easily and effectively given the simplified semantic interfaces, a previous pain point for large consolidated systems.

Since the advent of ChatGPT, we’ve seen a gold rush of companies using LLMs to change the way we process, communicate, and execute decisions. This technology is evolving so quickly that we could see it swallow the companies being built upon it. This should lead to fewer, but better, SaaS and BI tools, bringing up other questions about how companies differentiate themselves and the role of humans.

02

How do we make

AI safe for

businesses

to use?

Today, businesses are worried
about protecting their IP and
potential copyright lawsuits,
moral issues, and reputational
problems.

Tomorrow, businesses will
rely on new legal and procedural precedents to use
AI tools liberally.

There is legal precedent, there is enforcement, and there is public opinion.

Firstly, legal precedent (including regulation and policy) will naturally unfold and become clearer. One can make some guesses and predictions here, but ultimately, for competition to thrive, the laws will have to allow for some liberal use of the technologies. This can and will be argued, but it’s a fool’s game to think you can regulate away technological progress.

Secondly, as legal precedents are set, challenges will surface around identification and consequences for any wrongdoing. These will need to be policed at some level and possibly even enforced by code. Could smart contracts on the blockchain protect and enforce IP rights? Additionally, industry collectives like the RIAA, which in the early 2000s protected music IP, may form to make examples of companies and individuals breaching legal boundaries. Alternatively, AI tool use could become so common that courts won’t even consider lawsuits regarding copyright, trademarks, and reputation (although this is hard to imagine).

Lastly, public opinion could shape business use cases. Is there a risk of bias? Does a brand face risks when it represents something inaccurately or inappropriately using AI that it didn’t control? It’s hard enough to manage scaled public relations in a world where an executive is one tweet away from being fired or losing trillions in market value. We are entering a world in which ephemeral content is generated in seconds. Brands may struggle to keep up. Organizations will need to manage AI health just like they do cybersecurity.

03

How do we make

AI safe for

people?

Today, businesses own
people’s personal data.

Tomorrow, businesses will offer
identity protection
technology.

Regular audits of public companies not only verify the accuracy and legality of their financial records but also assess whether an organization has adequate controls and processes in place to mitigate potential liabilities. Future regulations may require audits on AI tools to make sure companies are operating legally, including via people controls and by reviewing code.

The government or businesses may also offer trust systems that let people authenticate their identities to interact as themselves with public and private sector services.

Alternatively, people may try to circumvent any potential censorship or gating by masking their identities.

04

Is your

competitive

landscape

being

disrupted?

Today, businesses try to
understand their direct
competitors.

Tomorrow, businesses will be
able to analyze their indirect
competitors and existential
threats.

AI-powered analysis tools could soon ingest data about every market globally and make connections between businesses, causing entire industries to disappear. Businesses could leverage AI to be predictive and anticipatory, uncovering opportunities that disrupt categories they never considered entering. Super apps that can do everything are a real threat.

Alternatively, categorical disruption may not happen because businesses will train AI tools on proprietary data to maintain their competitive advantage. The role of a brand will thus still matter because companies that are more focused on designing a specific user experience will be able to continue to differentiate themselves by providing unique value, while non-focused competitors won’t.

05

What is the future of

customer

experience

interfaces?

Today, businesses rely on traditional personalized targeting, information architecture, and rigid user flows.

Tomorrow, businesses will rely on anticipatory semantic and potential ephemeral experiences to target behaviors.

Is the interface that consists of a simple prompt text box with a response field here to stay? Or, will interfaces across various devices foresee what humans want, need, and desire, showing only the information that is relevant to users, when and where it’s required? Instead of you prompting the interface, maybe the interface will prompt you.

AI models may be able to help companies better understand their customers, viewing each one as a whole person and generating for them a more efficient, frictionless, and possibly ephemeral, experience in real time. This could include entertainment, marketing generated to pique interest, and interface elements like CTAs and drop-downs built in real time.

Alternatively, humans may not want generated content or experiences and will opt for more directed, but still personalized, user experiences.

06

What is the future of

branding?

Today, businesses build brand
identities based on static
logos and brand books.

Tomorrow, businesses will
build brands whose attributes
can be generated on the fly
based on an identity that more
closely resembles a human.

Brands in the future will have to act in real time. AI will be on the front lines across touchpoints, communicating dynamically with customers. The way a brand communicates at those digital moments will largely represent the whole brand.

It’s also conceivable that ad units will evolve into more dynamic product placements or other unique constructs as the world pivots to where audiences are engaging. The interactions will seemingly be more human and therefore branding will need to be more lifelike, built into a framework that can make its own decisions.

Conversely, brands could lose meaning because every business can just mirror back to people what they want, in real time.

07

Does

authenticity

matter?

Today, a brand brings
authenticity.

Tomorrow, ownership will be
more important than
authenticity.

Companies are grappling with when and how to be transparent about their use of AI tools. As AI becomes the baseline, companies that own everything they do will stand out. They may be able to build authenticity by unapologetically using AI to offer their customers what they need and want.

The key attribute will be ownership. Whether a piece of content is a deepfake won’t matter if you own the rights to use a given name, image, or likeness. How you create the content won’t be controversial. Ownership will be a core defining factor of both uniqueness and differentiation for a brand.

One could argue that a brand will be even more valuable in the future as a lot of the market consolidates and aggregators become makers. That said, ownership and uniqueness may become harder to achieve, and unique rights might become more expensive.

08

Should a business

invest quickly

or slowly

in AI?

Today, businesses either
invest too slowly and leave
themselves open to
disruption or too quickly and
spend wasted capital.

Tomorrow, the landscape will
be defined by where the
opportunity and need for
investment is.

Businesses recognize the importance of AI but often overspend due to a fear of falling behind. Despite the influx of ever-improving tools, there’s a noticeable redundancy in these so-called “innovative” ideas, hinting at future industry consolidation. On the flip side, inaction poses its own dangers, potentially leading to business stagnation and loss of a competitive edge.

Businesses should do two things immediately: build and invest in a data strategy and create a culture of safe experimentation with AI tools. The barrier to entry is surprisingly low.

09

What will

define

creativity

in the

future?

Today, businesses define
creativity as a skill.

Tomorrow, businesses will
define creativity only in the
way humans think,
not what humans can do.

The advent of generative AI could fundamentally transform how we value skills, pivoting from the traditional execution of skills to an emphasis on analytical and creative thinking. The necessity for manual skills in drawing, writing, or designing may diminish, as generative AI democratizes these abilities.

Furthermore, the reliance on human intuition for decision-making could shift toward AI-driven insights and analyses, processed rapidly and impartially. This change might render prompt engineers obsolete, as AI chatbots take on the burden of generating complex prompts.

This shift could lead to a scenario where digital content and experiences are ephemeral, created spontaneously by AI, potentially reducing the significance of human creativity in producing “things." Creativity might then be seen as a common resource, easily replicable and valued less.

Conversely, the future of business creativity might lie in the ability to innovate without relying on data or existing knowledge. Human distinctiveness could emerge through the generation of novel ideas, fueled by uniquely human emotions, such as passion and envy. In this scenario, genuine creativity could become rarer, yet significantly more treasured.

Final

Thoughts

AI is going to shuffle the deck of what companies do and provide, changing the competitive landscape and ultimately the workforce. Some changes will be obvious, like new forms of creative workforces, but others won’t be, like new types of departments, roles, and C-level officers around ethics, identity, and customer safety.

Learn About
ON_CES

Learn About
THE Issue

  • Hosted in partnership with Stagwell, ON_CES is taking the discourse straight to the convention floor.
  • We’re going to dedicate our unique process to unpacking and distilling the bold exhibition claims that make this the world’s biggest consumer technology convention.
  • A central theme of this issue will be the promise and implications of AI in consumer tech. What do the products on display represent for short- and long-term consumer trends? How do we distinguish between artificial hype and intelligent opportunities?

READ MORE
ABOUT THE ISSUE

subscribe to learn
more about ON_CES

Apply for
Membership

  • Hosted in partnership with Stagwell, ON_CES is taking the discourse straight to the convention floor.
  • We’re going to dedicate our unique process to unpacking and distilling the bold exhibition claims that make this the world’s biggest consumer technology convention.
  • A central theme of this issue will be the promise and implications of AI in consumer tech. What do the products on display represent for short and long term consumer trends? How do we distinguish between artificial hype and intelligent opportunities?
  • ON_CES will include the launch of The Intelligently Artificial Issue, which will provide deep analysis, plus provocation-driven discourse on the most urgent and important topics related to AI and business.

VIEW ISSUE

ces

Can

Be

Fixed

With

Discourse

Toby Daniels

Co-Founder, ON_Discourse

ON_Discourse co-founder Toby Daniels, a veteran of CES,
has taken over our CES planning meetings with hot takes
from his ample experience from the show. We thought we
should give him the pen to write a mini confessional about
the world’s biggest consumer tech conference
—ON_D

Toby Daniels

Co-Founder, ON_Discourse

CES is not new to me. I’ve been attending the event for over 15 years, having walked the crowded halls, networked in one event after the other, and seen countless overhyped tech unveilings.

Executives who report feeling disoriented and isolated.
Subscribe
To Our Newsletter

Receive CES event updates, plus preview articles and more.

CES’ primary problem is the whole event is confusing and crowded, while also
being extremely isolating. I am not alone in making this diagnosis; I have had
countless conversations with fellow convention goers and tech executives who
report feeling disoriented and lonely (especially during loud networking events).
This problem creates the conditions that lead to the second, most common issue.

In this mode, agreement is chosen over conflict, and innovation is nothing but an empty vessel of conventional ideas.

The event’s secondary problem mirrors a major issue in business, tech, and
media: groupthink. The show is an echo chamber with familiar faces and
conventional ideas wrapped in flashy tech. In this mode, agreement is chosen over
conflict, and innovation is nothing but an empty vessel of safe concepts.

CES is often touted as “a beacon for leaders in business and technology," where
the future meets today’s reality. While this paints a picture of innovation and
forward-thinking, it often masks the event’s superficial nature. CES, in all its
glory, can sometimes be more about shiny objects and getting into the hottest
party or VIP event rather than the depth of conversation. Despite the countless
curved TV screens that are never going to be a thing, I believe in the value of this
event and that we can fix CES.

The discipline of discourse is a forcing function that enables us to provoke, argue, challenge, and listen.
Learn More about
ON_Discourse

ON_Discourse is a private membership community and is made up of an expert network of business leaders who participate in the Discipline of Discourse in order to cultivate perspectives, decision-making, and meaningful relationships.

True perspective, I’ve learned, comes from heated debates, uncomfortable questions, and a willingness to listen to opposing viewpoints. This year, we are bringing our discourse and community to CES.

The discipline of discourse is a forcing function that lets us provoke, argue,
challenge, and listen – not just to reply, but to understand and consider. These
authentic engagements help us break free from the cycle of redundancy and
uncover truly groundbreaking ideas and new perspectives.

It's not just
about the technology; it's
about the intelligence behind it.
Learn more about
Intelligently Artificial Issue

How do we distinguish between artificial hype and intelligent opportunities?

At CES 2024, the ON_Discourse team will make the show in January worth
attending for our members, who will be organized into “Pods”, or small groups
that attend sessions together, join dinners, hit up parties, and practice the
discipline of discourse as a single unit. They will also get a guided experience,
including a kick-off briefing, a discourse-driven tour of the convention floor, and
invitations to a carefully curated list of events.

The discipline of discourse is a forcing function that lets us provoke, argue,
challenge, and listen – not just to reply, but to understand and consider. These
authentic engagements help us break free from the cycle of redundancy and
uncover truly groundbreaking ideas and new perspectives.

Apply for
Membership

Join ON_Discourse and get access to the ON_CES Intelligently Artificial Issue, exclusive events, and a discourse-driven floor tour showcasing the latest innovations in AI and tech.

As we move towards CES 2024, I feel a renewed sense of purpose. Our approach
is different – we won’t be there just to observe; we’ll be there to engage and
disrupt the status quo of conversations. We’re setting up to ensure our members
experience CES not as a showcase of gadgets, but as a forum of intelligent,
meaningful dialogue.

I am hopeful that with our concerted effort, this CES will mark a turning point.
Our next Issue, “Intelligently Artificial," will capture this shift from superficial
tech displays to rich, meaningful exchanges of ideas. It’s not just about the
technology; it’s about the intelligence behind it – the thoughts, the debates, and
the discourse.

Toby Daniels

Co-Founder, ON_Discourse

Join our growing community of business leaders, innovators, and entrepreneurs to access new perspectives, better decision-making, and more meaningful relationships.

Applications for 2023 close on December 22.

Michael Treff
Code and Theory CEO,
Co-Founder of ON_Discourse

The Fashion Industry
Treats Tech Like
a Seasonal Trend

The fashion industry prides itself on being on the cutting edge. What is fashion if not trendsetters deeming what is worthy to grace our collective bodies? And yet, while fashion companies dictate and forecast what’s next, they mistake truly seismic shifts in technology, which can fundamentally change not just business operations but also consumer experiences, for just another seasonal trend.

On the back end, the fashion industry structurally embeds technology everywhere. Fashion companies constantly leverage a variety of tech wherever consumers are not present: from materials creation to factory logistics, to supply chain management, to shipping and delivery. When there’s potential for profit—be it through addressing labor concerns, enhancing material durability and sustainability, or simply uncovering new cost efficiencies—the latest technology is reluctantly embraced.

However, on the front end, where technology has the ability to change the way a consumer and the brand interact, the fashion industry treats technology like a seasonal collection, opting to ride hype cycles and use innovative tech as hype engines vs. using new technology to find opportunities to solve for consumers. Rarely does the consumer-facing, marketing-driven sides of fashion organizations adapt new technology in a systemic, structural way, rather than opting for the tech version of disposable fast fashion. Although products are created with the latest cutting-edge innovations, they are sold by whatever tools happen to be available. These tools range from what appeared to work in another industry last decade to whatever happens to be on everyone’s lips this week in Silicon Valley.

The fashion industry is like a dog and its owner. The owner makes sure the dog has water, is fed, has toys, gets plenty of attention, and attends its regular veterinarian appointments. Then the dog goes to the park and chases squirrels.

A few years ago, fashion companies discovered AR, for a few months. There was a collective excitement about making billboards come to life on your phone, which, as we know, solves many consumer problems and drives bottom-line ROI in unparalleled ways. This AR blitz achieved absolutely nothing. AR didn’t affect their bottom line in any way, was a frustrating consumer experience, and peaked as merely a neat activation—yet another gimmick. Fashion companies went in with a short-term focus: “Hey, AR looks cool. Let’s try AR, and we’ll be cool too!”

This happens repeatedly.

QR codes? Fashion companies decided they were the future and the only thing consumers could ever want, so for a little while, they put them everywhere.

NFTs? Rinse and repeat.

Because the excitement always lasts just one season, there’s no need to invest for the long term. As we discussed at our recent NYC event, the fashion industry is fundamentally hype-driven and thus cannot sustain new tech forces beyond a single seasonal trend cycle.

Fashion companies go all in on non-structural, non-systemic, activations-leveraging, flavor-of-the-month tech. Because technology is seen as a fad rather than a systemic differentiator for the customer experience, there’s no lasting impact on the company’s data, infrastructure, ability to drive personalization, or sales enablement. All those areas are entirely separate from the marketing department that got wind of web3.

Fashion’s tech trend phenomenon goes back decades.

At the beginning of the shift to the direct-to-consumer (DTC) model, traditional fashion brands didn’t know what to do with e-commerce. First, they tried to ignore it. In some ways, this was understandable. Fashion brands are simply dominated by forces that are antithetical to structural technology adoption. The industry is built on hype and disposability–it’s not built for long-term structural change. Non-native digital fashion businesses didn’t want to even accept e-commerce because it would “erode the brand".

When that didn’t work, brands tacked e-commerce onto their existing operations. That was only a slight improvement. While fashion companies had finally accepted online shopping as necessary, they didn’t embrace it. The budget for their e-commerce environments compared to what they would spend on their physical retail environments was minuscule.

This was ridiculous.

Obviously, your online store is going to be your biggest store. Obviously, your online store is uninhibited by scale and reach and foot traffic. And obviously, your online store has a lower cost of entry than a store on Fifth Avenue. So obviously, brands treated their online store like a campaign.

The e-commerce budget across the technology infrastructure, UI, and UX would typically be less than what they would spend on a billboard for 2 markets.

The incumbents had left the runway wide open. Eventually, a crop of DTC-based fashion brands and companies leapfrogged the traditional players in their e-commerce footprint. For the newcomers, e-commerce was their only footprint. They didn’t have retail stores. From Warby Parker to Everlane to name your favorite mattress or beauty company (I’m looking at you, Glossier), they all started with a digital-first, technology-first, e-commerce-first mentality, which let them build completely differentiated businesses.

When the legacy companies finally realized their mistake, they eventually caught up. They caught up, but only in terms of understanding the need to invest, not the magnitude of the investment, or the subsequent ROI. Today, the budget that luxury brands will spend on campaigns, social content, influencers, and marketing versus what they will spend on infrastructure and technology to drive high-conversion, high-margin sales, remains fractional.

It’s likely that fashion brands have simply decided that their customers don’t need to be wooed and wowed. People who want to buy a $10,000 purse are going to do so regardless of the digital consumer experience. And so, fashion brands don’t see the value in investing in tech because they already reach some customers and believe the group of people they could win over with tech is infinitesimally small. This is precisely why these companies were too slow to react to the internet and e-commerce: they couldn’t grasp the potential outside of their existing revenue stream.

Ultimately, this is a cultural problem of siloed departments. There’s a clear bifurcation between the people who make and market the products and those who own the most important touch point: the digital properties. These are not the same people. They’re not even in the same organization. They operate as if they have different competing goals. Someone owns the tech and the platform, someone else owns product development, and a summer intern who owns marketing.

This internal division exacerbates the problem, creating a blocker for any adoption of technology and innovation. Fashion brands aren’t interested in extending the latest tech across back-of-house, product development, marketing activation, and sales. They view technology as an inhibitor, rather than an enabler, of brand and product value.

As long as companies in the fashion industry continue to operate under this premise, and organizationally bifurcate the various touchpoints within a consumer’s experience, they will be playing catch-up and opening themselves up to disruption.

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IP LAW

APPLIES TO

PHYSICAL AND DIGITAL

FASHION

GOODS

Tony Iliakostas
Adjunct professor of Entertainment Law and IP at New York Law School

Why the Metaverse Creates Brand Identity and Authenticity Issues for Fashion Companies

Have you ever scrolled through eBay, StockX, Facebook Marketplace, or some other secondary marketplace and come across a pair of sneakers that catches your eye? Maybe there’s that luxury handbag that is normally outside your budget but a seller is selling the item for a significantly cheaper price. You pull the trigger and make the purchase, only to wait a week for the item to arrive and realize that the product was not truthfully advertised. In fact, upon further inspection, you realize that you bought a “dupe” – a fake.


The Battle Against Counterfeit Goods in Secondary Marketplaces is Significant

This is the unfortunate reality of secondary marketplaces. Some sellers will blatantly sell fake versions of real fashion products under the façade of the product being genuine. A 2018 study by the US Government Accountability Office found that about 40% of goods purchased on e-commerce websites are counterfeit products. This same study also determined that of the 32 million shipments processed by US Customs and Border Protection (USCBP) in the year 2016, over 31,000 of them were seized containing products that infringed on the copyright, trademarks, or other IP rights belonging to major brands, including fashion-oriented brands. The estimated value of these seizures was over $1.3 billion. That’s nearly 3 times the valuation of the top 10 luxury fashion brands in 2023.

The sale of counterfeit goods has been a battle USCBP has consistently engaged in for years. USCBP recognizes the transport and sale of counterfeit goods as a federal offense that is punishable by a fine, prison time, or both if one is convicted of engaging in criminal copyright infringement or criminal trademark infringement. But aside from government intervention and enforcement, secondary marketplaces have come to recognize the growing trend of counterfeit goods sales on their platform. Thankfully, they have addressed this issue front and center. In addition to having a counterfeit goods policy, eBay has created authentication protocols that would ensure that any watch, handbag, or piece of jewelry sold is authenticated by a professional. Similarly, StockX (a marketplace known for selling sneakers) has its own verification process to ensure that any sneaker sold is legitimate. 

The biggest victims of counterfeit goods sales on secondary marketplaces are brands. In particular, fashion brands have been prone to infringement-worthy activity for decades. Behavior like this is well documented in “House of Gucci” when counterfeit Gucci products were being sold for a significant fraction of the cost during Gucci’s meteoric rise to fame. Fashion brands recognize that people are quick to flock to secondary marketplaces or even take a walk to places like Canal Street and get a fake product and compromise quality for the sake of saving money. 

New Media = New Opportunities for Infringement Activity

The culture of counterfeit fashion product sales has taken a new turn in recent years, as the budding NFT marketplace has become the new home of alleged “dupe” product sales. Many recent headlines have brought this matter to the forefront. Last year, Nike accused StockX of trademark infringement after StockX sold NFTs of sneakers to consumers who had purchased the same sneaker on their website. In the same allegation, Nike accused StockX of selling counterfeit Nike sneakers that were verified to be authentic. As significant as this Nike/StockX lawsuit is, it pales in comparison to a recent lawsuit involving the iconic Birkin bag.

When you think of Hermes, one of the most powerful and dynamic high fashion brands in the world, you think of its most popular and recognizable product: the Birkin bag. The price tag ranges anywhere between $10,000 and $40,000, with even diamond-covered Birkin selling at a robust $2 million

But what if you could buy a Birkin (well, maybe not a real one) for an extreme fraction of the cost? Enter stage left, MetaBirkins. MetaBirkins was conceived by artist Mason Rothschild in late 2021 during the NFT (non-fungible token) boom. The appeal of MetaBirkin NFTs is that they weren’t as expensive as actual Birkin bags. Priced at $450, these digital collectibles closely mimicked the Birkin’s design and generated a reported $450,000 in sales. However, Rothschild unknowingly violated Hermes' trademark and trade dress.

In January 2022, Hermes pursued a trademark and trade dress infringement lawsuit against Mason Rothschild. In their lawsuit, they alleged that Mason Rothschild’s use of the word “Birkin” violated the trademark rights to the Birkin name that is registered in the US Patent and Trademark Office. They also alleged that Mason Rothschild’s recreation of the Birkin bag in NFT form infringed on the trade dress of the Birkin bag that is also registered in the USPTO. According to the argument set forth by Hermes, Mason Rothschild’s use of the Birkin name and his recreation of the Birkin bag is enough to cause consumer confusion. 

Consumer confusion is a core element in trademark infringement lawsuits because it boils down to whether an infringer’s use of an existing trademark could lead people to believe that the infringement came from the original trademark owner. Here, Hermes provided actual data showing consumer confusion, especially because it was around the time that other fashion brands were jumping on the NFT bandwagon. Also, while MetaBirkins were considerably cheaper than an actual Birkin bag, it definitely was an expensive NFT, which seemed to be congruent to Birkin’s typically high price tag.

Mason Rothschild, on the other hand, argued that MetaBirkins was not trademark infringement but rather an exercise of free expression that is afforded to him as an artist under the 1st Amendment. In trademark infringement matters, a defendant can raise a 1st Amendment defense that came about thanks to the iconic Rogers v. Grimaldi decision. Rogers v. Grimaldi determined that an alleged infringer is not liable for trademark infringement if their use of someone else’s trademark was used in creative works of expression. Mason Rothschild argued that as an artist, he was expressing his vision no different than Andy Warhol did with his Campbell’s soup can series.

Unfortunately, though, the odds were not in Mason Rothschild’s favor, as the Southern District of New York found that MetaBirkins was not subject to protection under the 1st Amendment. Mason Rothschild sought an appeal from the SDNY, asking for a new trial and a re-review of the facts of the MetaBirkins case. However, the court quickly denied the request and even permanently enjoined Rothschild from profiting off of MetaBirkins NFTs and even owning any MetaBirkins-oriented domain names. This was essentially the last nail that sealed the coffin for MetaBirkins.

HERMES V. ROTHSCHILD

TAKEAWAYS FROM THE METABIRKINS LAWSUIT

There’s a lot to unpack from the MetaBirkins case, but there are so many valuable lessons to learn from this lawsuit that fashion brands should be aware of with the evolving landscape of newer media and intellectual property law:

#1

The Law Doesn’t Discriminate Between Digital and Physical Universe

While current IP law is a bit antiquated, it’s safe to say that the language of the Lanham Act (federal law governing trademarks), the Copyright Act of 1976, and other IP legislation is broad enough to cover existing media and media that are to come in the future. And yet, with the dawn of NFTs, the metaverse, generative artificial intelligence, and other newer media, people fail to understand that intellectual property law governs the digital universe as much as it governs the physical universe. 

#2

Brands need to protect their IP

While current IP law is a bit antiquated, it’s safe to say that the language of the Lanham Act (federal law governing trademarks), the Copyright Act of 1976, and other IP legislation is broad enough to cover existing media and media that are to come in the future. And yet, with the dawn of NFTs, the metaverse, generative artificial intelligence, and other newer media, people fail to understand that intellectual property law governs the digital universe as much as it governs the physical universe. 

#3

NFTs are a new breeding ground for infringements

Perhaps the biggest lesson to be learned is newer media like NFTs and the metaverse are highly unregulated. Existing law contains broad enough catch-all phrasing that could apply to them. The reality though is that NFTs and the metaverse are still the wild west. NFT creators are mindlessly using other people’s trademarks without thinking of the big-picture issues. In the same vein, brands have their hands full trying to inhibit infringements of their IP in real life and these alternative universes.

The MetaBirkins case scratches the surface of the abundant number of legal issues facing major brands who are seeking to protect their IP from infringements in these emerging technology ecosystems. Fashion brands must remain proactive in registering their trademarks, registering design patents, and continuously protecting other aspects of their IP portfolio in such a way that they have full latitude to go after anyone who infringes on their products. 

For many fashion brands, their legal battles are no longer limited to going after the manufacturers of counterfeit goods, whether the product is sold on eBay, DHGate, or elsewhere. With the dawn of NFTs and new media, infringements like the ones evidenced in the MetaBirkins case are very likely to happen. Fashion brands must recognize that battling “dupe” product culture has reached new dimensions; if they’ve combatted counterfeit culture all these years, addressing it in new terrain like the metaverse should be straightforward.

Do you agree with this?
Do you disagree or have a completely different perspective?
We’d love to know

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Ownership has fallen out of fashion

AI forecasting is essential to fashion’s survival

Moish E. Peltz, Esq.
Partner, Falcon Rappaport & Berkman
Intellectual Property Law and AI: The Future of Athlete Branding

The rapid technological advancements in artificial intelligence are reshaping numerous industries, with sports and athlete branding emerging as a potential area of transformation. However, burgeoning AI technology raises compelling legal and intellectual property issues for athletes, law practitioners, and other stakeholders.

Traditionally, professional athletes have been able to commercialize and protect their name and brand. More recently, since the U.S. Supreme Court’s June 2021 ruling in NCAA v. Alston, even amateur collegiate athletes have increasingly benefitted from this same concept, after gaining the ability to monetize their name, image, and likeness (NIL). 

Now with the advent of powerful consumer AI tools, all athletes have the means to use their brand and likenesses to generate new revenue streams. Examining past experiences in licensing likeness can shed light on these opportunities and concerns. 

AI will

Consider the music industry. In April, artists Drake and The Weeknd suddenly had a new hit collab titled “Heart on My Sleeve.” The song had hundreds of thousands of streams on Spotify and Apple Music. But, as it turned out, the song was an AI-created knockoff. Neither of the artists had actually recorded the music.

In response Universal Music Group, the record label for the artists, swiftly moved to have the song removed from major streaming platforms, and went a step further, asking the platforms to prevent AI companies from using their catalog to train generative AI tools. However, another artist, Grimes, moved to “open-source” her voice using AI tools, allowing fans to share 50% of the royalties generated using her newly created GrimesAI-1 voice generation platform.

A recent television commercial featuring an AI-generated young Charles Barkley demonstrates another potential use of AI-created content in advertising. Sports betting company FanDuel created an authorized version of a young Charles Barkley in his NBA prime to star in a television ad opposite the present-day retired NBA player-turned-announcer, to hilarious results. Here, the laws that govern the commercial use of an athlete’s likeness could apply, but new stipulations addressing AI applications would be crucial.

Transform

And then consider the video gaming industry, where athletes have licensed their images for use in popular games like FIFA or Madden for decades. Recent AI technology promises to allow gamers to interact with real-time generated avatars with in-game voices and faces that respond to a gamer’s input, such as questions. 

Given that we have already seen popular social media personalities which are entirely robotic or virtual, such as Miquela or FNMeka, it is not difficult to imagine interacting in real-time with your favorite athlete, perhaps even in a version of FIFA or Madden in the future. 

Generative AI can already help create engaging avatars by simulating an athlete’s tone in social media posts or in interactive chatbots. The possibility of personalized fan engagement through these kinds of AI-generated means could bolster an athlete’s brand in unprecedented ways.

Athlete

This arrangement is potentially beneficial for many in the industry. Gaming companies can release more engrossing games. Gamers could get a more interactive experience of their favorite players, albeit an AI-generated version. Athletes and leagues stand to earn more revenues and establish a more personalized connection with their fans. 

However, as athletes enter this new era of branding, they will want to consider the legal implications, looking at the current landscape as a guidepost for licensing AI-generated use cases. For example, the extent to which AI-generated works are protected by US Copyright law, if at all,  is now under question, and many open legal questions remain. Such a world would require athletes, teams, leagues, agents, lawyers, and the industry write large to reimagine already complex contractual agreements, necessitating legal adaptations to accommodate AI technologies.

Some bedrock principles still apply. AI’s potential impact on personal branding in sports could potentially be colossal, but athletes must still take a proactive legal approach as build, protect and grow their brand, secure any relevant IP rights, and operate with a wholistic and long-term outlook as they seek to monetize their NIL rights. 

Branding

or
Did Tom Brady
Really Say That?
Tony Iliakostas
Adjunct professor of Entertainment Law and IP at New York Law School

Moreover, it’s crucial to consider potential legal risks or drawbacks to an athlete’s brand. The use of AI technology raises the possibility of diminishing brand value if not properly managed, leading to a watered-down fan experience. As AI tools become more sophisticated, bad actors could create unlicensed deepfakes of athletes, leading to misuse, misrepresentation, or outright fraud. These realities underscore the importance of robust IP laws that are adaptable to technological changes, and that athletes and their advisors know how and when to use legal remedies.

Athlete branding will evolve along with the next generation of AI technology, and so existing IP laws must evolve to address the complex challenges that might arise. While there is no doubt that AI holds exciting prospects for athletes, it also opens a potential Pandora’s box of legal issues. Athletes, alongside their advisors, lawyers, and agents, will need to navigate this uncharted territory with foresight and diligence, ensuring the protection of their likeness in the evolving landscape of AI technology.

This article is for informational purposes only and should not be construed as legal advice. Feel free to reach out to Moish Peltz, Intellectual Property Practice Group Chair at Falcon Rappaport & Berkman LLP, with specific questions at mpeltz@frblaw.com.

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