Mark it: 6 big trademark, copyright, and advertising trends we are watching for 2025

An increasingly competitive and fractured marketplace and a rapidly evolving legal landscape mean that protecting your intangible assets, enforcing your rights, 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 over the coming year.

1. An AI risk-benefit balancing act. With generative AI promising great potential, companies are focusing on practical ways to leverage the technology while avoiding the quagmire of intellectual property rights issues. In 2024, significant investments in enterprise-level large language models (LLMs) were made, and in 2025, closed systems tailored to specific use cases will likely continue to rise, offering a way to balance AI’s risks and rewards by limiting exposure to IP claims. In addition, in late 2024, the explosion of multimodal models and generative adversarial networks brought opportunities and challenges, and we expect 2025 to replicate or even exceed the prior year. In-house counsel and their firm partners are monitoring ongoing developments, especially AI developer litigation, to shape their own best practices for customized training and other facets. As the landscape quickly evolves, companies will need a more precise technological understanding of how these AI tools work to better assess and capitalize on opportunities while appropriately addressing legal risks.


2. Authenticity claims at real risk. The ever-expanding secondary/reseller marketplace continued to grow in 2024, providing an even larger platform for counterfeiters to infiltrate the country and flood the US economy with fake product. Because the genuineness of branded product is of the utmost importance to consumers, numerous industry players advertise their ability to authenticate with precision. In 2024, brands and agencies continued to push back on those claims, first in the form of a false advertising jury verdict against a secondary platform sued by a luxury powerhouse, and more recently in a $2 million Federal Trade Commission (FTC) penalty against a popular sneaker reselling platform. With other cases working their way through the system, and a potential for further administrative and regulatory action, entities should tread carefully when claiming the ability to accurately determine whether a branded good is a fake.


3. The rise (and fall?) of dupe culture. While the manufacture and sale of knockoff apparel, accessories, and cosmetics is nothing new, this past year saw an exponential rise in consumer demand for duplicate or “dupe” products, with dupe-related hashtags and posts dominating retail-oriented social media influencer content. The backlash? A growing number of brands protecting their copyrights, design patents, and trademarks in federal litigations and administrative proceedings against these copycat goods. This coming year will likely provide further clarification on where the line is drawn between nonactionable inspiration and unlawful infringement.


4. Trademark filing fees on the rise. In its own take on a prosperous new year, the USPTO is implementing changes to filing fees. Many other trademark and copyright offices around the world are doing the same – some at even higher rates. Beginning this month at the USPTO, base fees will be $350 per class for applications based on use, intent to use, or foreign registration, but applicants using complex or free-form identifications of goods and services face additional costs, including a $200 surcharge for using free-form language instead of the USPTO ID Manual, and another $200 for every 1,000 characters beyond the first 1,000 in free-form filings. The take-home lesson? Keep your ID short and simple while still properly protective, or expect higher fees. Foreign applicants, who often file extensive lists, may want to review their filing strategy to avoid these surcharges.


5. Is upcycling sustainable? “Upcycling” is the term of art for the use of material from third-party brands, often including fabric bearing that brand's famous trademarks, to create something new and, at least as originally proposed, of higher value. As this practice has evolved, however, the controversial trend is facing a growing number of trademark claims from rightsholders pushing back against defendants attempting to invoke the First Sale Doctrine. The proliferation of “upcycled” products can dilute a brand’s exclusivity and perceived value (while also interfering with a brand’s strategic merchandising), especially for high-end labels or trendsetting brands that rely on a carefully curated image. Given the competing public interest and regulatory interest in sustainability, however, brands must balance protecting their rights against ESG considerations.


6. AI and copyright considerations. 2024 saw a continuation of litigation (including against end users) and licensing regarding AI-related uses of copyrighted content. As AI technology continues to evolve at a seemingly unstoppable pace, the volume of new litigation and licensing activity in the year to come will likely be influenced by the Ninth Circuit’s assessment of whether 1202(b) claims under the DMCA require removal of copyright management information from a substantially similar or identical copy of a work. In addition, several district court decisions in the past year focused on fair use considerations surrounding the use of copyrighted content to train AI models are expected. Of equal import is the Copyright Office’s forthcoming influential report on liability for use of copyrighted works to train and generate outputs from AI models, along with state and federal legislative activity concerning disclosure of training data.

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

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