Mark it: 6 big trademark, copyright and advertising trends we are watching for 2023

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 – we expect the significance of these trends will only grow in the coming months.

1.  We will continue to see increased scrutiny regarding ESG advertising claims: With brands increasingly seeking to differentiate themselves through their environmental credentials and regulators sharpening their focus on green claims, there is a clear imperative for advertisers to ensure claims are fully compliant.

2. A giant year for fair use. As if SCOTUS issuing a decision on Warhol v. Goldsmith’s challenge to copyright fair use weren’t enough, the Court has now granted certiorari on Jack Daniels v. VIP Products.  This case has the potential to resolve circuit splits on the Rogers v. Grimaldi test, which largely insulates uses of trademarks in expressive works.  Add to that Vans v. MSCHF, Hermes v. Mason Rothschild, and several other percolating fair use cases, and we are certain to see some decisions that impact multiple industries.

3. Challenges to savings claims are on the rise.  Many retailers are seeking to capitalize on anxiety over inflation and fears of recession by marketing their products to consumers as money-savers. If your company makes such claims, are they accurate?  Complaints about savings claims are trending before the BBB’s National Advertising Division – and in litigation in the district and federal courts.

4.  Trade secret materials are both leaving and entering companies, often unintentionally. Accelerated employee mobility; reductions in force; cancellations of development and license agreements based on the anticipated economic downturn; and burgeoning “bring your own device” and hybrid workplaces have contributed to a work environment in which the odds dramatically increase that a company will unwittingly receive another company’s trade secret on its computer systems – or have its own trade secrets transmitted to a competitor. This means a greater need for internal investigation of such events. As soon you suspect any such occurrence, launch an internal investigation to scope and remediate the issue.    

5.  The metaverse is here to stay.  NFT use cases will keep evolving. NFT litigations are marching forward. Legislators are looking to the USPTO and the Copyright Office for answers. We continue to monitor the interplay of First Amendment, copyright and trademark issues in the Web3 space.

6.  AI and copyright issues will be top of mind. Thanks to technologies like text-to-image, use of AI-generated art will explode, concepts of copyright ownership will evolve and novel questions will arise regarding the infringement risks posed by AI-created works.

Our lawyers practice at the vanguard of trademark, copyright 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.