INTRODUCTION Contributed by: Dale Cendali, Joshua Simmons and Jeremy King, Kirkland & Ellis LLP
response to a given legal topic” to train “a competing AI tool for finding court opinions in response to a given legal topic… was not transformative”. In holding that the defendant’s use of the plaintiffs’ works to train its LLM constitutes fair use, the court remarked that “the technology at issue was among the most transforma - tive many of us will see in our lifetimes”. Anthropic, however, used copies of these works for multiple pur - poses, one of which was to create a “central library” containing over seven million pirated books. The Court held that keeping pirated copies in a library was not fair use. These cases provide practitioners with important data points on (1) how courts will view the significance of transformativeness on a fair use inquiry, (2) how transformativeness will be analysed under the Supreme Court’s recent Warhol decision, and (3) the market effects courts will find persuasive, all of which may vary between judges. In Germany, the Higher Regional Court of Hamburg issued the first EU appellate court decision involv - ing AI and copyright, holding that the EU text and data mining (TDM) exceptions permit non-profits to compile datasets for AI training from publicly avail - able content. As highlighted in last year’s guide, many nations, such as the UK and Singapore, have simi - lar TDM laws, and practitioners in those jurisdictions should look to this decision for guidance. Trends Towards Efficiency and Increased Control Exerted by Trade Mark Offices Over the Content of the Register In 2025, several nations emphasised speed and effi - ciency in their trade mark regimes. United Arab Emirates In 2025, the UAE shifted its trade mark policy from compliance with international treaties such as the Madrid Protocol to acceleration and commercial integration. Focusing on “optimising velocity” over “establishing rights”, applications that used to take a month now take a day, and litigation that used to be handled in civil courts is now handled in streamlined administrative proceedings. South Africa In San Miguel Brewing v Power Horse Energy Drinks , the South African High Court declined to stay a trade
mark opposition proceeding pending the outcome of an expungement proceeding involving the same par - ties and marks. In so doing, the High Court noted its frustration with the unnecessarily long-winded nature of the proceedings, allowing the two proceedings to proceed concurrently. Costa Rica Costa Rica also recently implemented electronic filing procedures and made electronic certificates available, further supporting the global trend towards efficien - cies. Expungements and Trade Mark Offices Asserting More Control Over the Register United States The US Patent and Trademark Office (USPTO) recently updated its expungement procedures to allow for par - ties to flag marks for USPTO review that the party believes should be removed from the Principal Regis - ter, as well as for sua sponte examination for expunge - ment by the USPTO. As of January 2025, the USPTO reported that it had cleared over 25,000 marks from the Principal Register as a result of this mechanism, promoting a more streamlined review process for new applications and lowering the burdens of inter partes cancellation proceedings, which had been the primary mechanism for removal of marks. This process pre - sents interesting strategic decisions for litigants, as the proceeding cannot be retracted or otherwise dis - missed by the initiating party once the USPTO takes action. Israel In Commissioner of Trademarks v Kviscal Services , the Israel Supreme Court held that the trade mark office was not bound to accept the terms of a coexistence agreement where the office independently determined that there was a likelihood of consumer confusion. In so doing, it ruled that the protection of public inter - est overrides private autonomy. Similar to the Unit - ed States expungement proceeding, this decision reinforces that the Trademarks Department has the authority to act irrespective of private parties’ wishes. France France has seen an increase in expungements, as well as a trend away from broad filings covering numerous
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