An ever more competitive marketplace and a rapidly evolving legal landscape mean that protecting your intangible assets and mitigating intellectual property risks are more challenging than ever.
Here are six trends we have been following closely – and we expect the significance of these trends will only grow in the coming months.
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- The Jack Daniels hangover. Trademark practitioners surmised that Jack Daniels would in some way alter the legal landscape surrounding Rogers v. Grimaldi, a First Amendment defense which largely insulates uses of trademarks in expressive works. What we now know is that the decision created a new Rogers threshold that requires the allegedly infringing use to be a trademark use. Demonstrating trademark use in other Lanham Act contexts has never been straightforward, and, thanks to Jack Daniels, is now likely to become the new Rogers battleground. The Second Circuit’s recent Vans v. MSCHF decision, which held that MSCHF was using the infringing Vans trademarks and trade dress as source indicators, sheds light on how courts will evaluate the issue moving forward.
- AI and IP. AI technologies that can produce sophisticated text, images, music, and other content will continue to advance. Small and large businesses alike will continue to adopt these tools to compete in the market. All the while, domestic and international regulations and court decisions will start to come into focus, including initial decisions about whether and when training and use of AI is fair use and what AI-generated content can be protected by existing forms of IP. More on this trend can be found on AI + Intellectual Property, part of our new series of conversational videos, AI ChatRoom.
