USA Law and Practice Contributed by: Keith Medansky, Tamar Duvdevani, Michael Geller, Aislinn Smalling and Kristina Fernandez Mabrie, DLA Piper LLP
• a number of preliminary determinations from dis - trict courts allowing claims of direct and secondary copyright infringement liability to survive Rule 12 motions filed by AI developers regarding AI out - puts. 2026 should bring a larger body of law in this area due to several anticipated summary judgment rulings and the first appellate decisions regarding the training and outputs of generative AI models. In the realm of copyright registration, the USCO has denied registration of materials that are completely AI-generated, as US copyright law requires that the creator be a human author. Copyright registrations may be granted to works partially generated by AI, but which require human selection, editing and other creative inputs. The US is still seeing how two recent Supreme Court decisions, Warhol and Jack Daniel’s , impact fair use defences in copyright and trade mark law, including when it comes to AI. We are starting to see the impact of these cases in lower court decisions. Trade Mark Prosecution Trade mark prosecution is expected to speed up but will require more careful attention to identification of goods and filing procedure. On 1 January 2026, the updates to the Nice classification of goods and ser - vices in trade mark applications took effect to mod - ernise language and meet treaty requirements. Class 9, for example, now covers digital and virtual prod - ucts. Applicants should be mindful of these changes when filing applications to avoid Office Actions and delays. The PTO has recently forecast quicker exami - nation setting a goal of receiving a first Office Action within 4.5 months and nine months for total process - ing by FY 2028. To handle demand, the PTO plans to hire more examiners in 2026. The PTO, which has
deployed AI to identify suspicious applications, is also focused on protecting the trade mark registration system from fraud and abuse, particularly from filers using “boiler room style” filing mills, spoofed identities and fabricated evidence of use. The PTO reports it has “terminated” thousands of fraudulent trade mark applications and barred many practitioners abusing the system from practising before the PTO. Dupe Issues Rights-holders will continue to assert “dupe” claims against other market players for claims pertaining to product and packaging design. The ongoing and surely-to-be-filed litigations in consumer products, cosmetics and apparel will continue to shape where courts draw the line between non-confusing uses of functional or aesthetic design and overt and success - ful attempts to usurp a brand’s goodwill. A theme to nearly all dupe cases is debate over the significance given to the consumer’s awareness and intentional purchase of a copycat, less expensive version. 12.2 Trade Mark and Copyright Use on the Internet The Digital Millennium Copyright Act (DMCA) created the notice-and-takedown system, which allows copy - right owners to inform online service providers about infringing material. Section 512 of the DMCA shields online service providers from monetary liability and limits other forms of liability for infringement – referred to as safe harbours – in exchange for taking down infringing content after notice. The Lanham Act creates a cause of action for cyber - squatting which arises when a person uses (or “reg - isters” or “traffics in”), in bad faith and with the intent to profit, a domain name that is identical or confus - ingly similar to a trade mark owned by another (1999 Anticybersquatting Consumer Protection Act, 15 USC § 1125 (d)).
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