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4 January 20244 minute read

Mark it: 6 big trademark, copyright, and advertising trends we are watching for 2024

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.

  1. 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.

  2. 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.

  3. How far back can copyright damages go? Ever since Justice Ruth Bader Ginsburg discussed a three-year damages period from the filing of a copyright complaint in Petrella v. MGM, confusion has occurred over how that portion of the decision interplays with the discovery rule in copyright cases. SCOTUS taking cert. on Warner Chappell Music, Inc. v. Sherman Nealy will likely provide much-needed clarification on this issue – but the outcome could well increase the risk of litigation activity over time-barred copyright claims under the guise of the discovery rule.

  4. The FTC is watching your social media marketing. Many companies have formed business arrangements with social media influencers, celebrities, and even customers, and have come to rely heavily on their online reviews and endorsements. Has your company properly disclosed that this is funded advertising? The FTC is seeking to set new precedent in holding influencers and industry accountable for social media marketing campaigns that fail to make this clear. Warning letters have already been received by major food and beverage industry groups and nutrition influencers. Close monitoring of social media marketing is essential for companies and for influencers to ensure they remain in compliance with these updated guidelines.

  5. Where noncompetes are outlawed, will trade secret lawsuits follow? Federal agencies and a growing number of states are adopting prohibitions against employee non-solicit and non-compete provisions. Increasingly, plaintiffs are attempting to fill the gap left by unenforceable noncompetes with trade secret claims against companies that hire former employees. Companies should take caution and lay the groundwork to establish that they did not receive or use any competitor trade secrets from new hires who formerly worked for a competitor, and that they took reasonable measures during the hiring process to ensure the same.

  6. Is your brand really saving the environment? Negative public attention – and civil litigation – over misleading environmental claims is on the rise. Most notable are lawsuits against brand-focused businesses addressing “greenwashing”: deceptive claims about a product’s environmental benefits. A series of lawsuits have already been filed in various states known for favorable consumer protection laws, and we are watching those closely, both from a class certification and a substantive consumer law standpoint.

Our lawyers practice at the vanguard of trademark, copyright, trade secret, and broader IP law and work on notable matters in every key jurisdiction. We translate that advantage to you via pragmatic and effective commercial guidance and solutions.

Find out more about these swiftly evolving areas of law and how they affect your business by contacting Tamar Duvdevani.