Trade Marks & Copyright 2026

2025 was a year dominated by artificial intelligence, producing landmark court rulings in AI-based copyright cases both in the United States and abroad. The past year also produced the Dewberry Group v Dewberry Engineers Supreme Court decision in the United States, resetting the table for how plaintiffs determine which corporate entities to include as defendants. At the same time, trade mark offices across the globe are trending towards speedier, more efficient outcomes and cracking down on use requirements and overbroad registrations.

AI

In 2025, US courts and those abroad issued highly anticipated rulings at the intersection of copyright and artificial intelligence. In the United States, district court decisions in Thomson Reuters v ROSS Intelligence, Kadrey v Meta and Bartz v Anthropic provided guidance to litigants as to the paramount importance of a plaintiff showing the effect on the market for works used in training under the United States’ fair use rubric.

Emphasising the importance of the effect on the market factor, the Thomson Reuters court held that the defendant’s copying of Westlaw headnotes to create a competing legal research product was not fair use. This case is currently on interlocutory appeal in the United States’ Third Circuit Court of Appeals, where it stands to be the first US appellate decision applying copyright law to the training of an artificial intelligence.

Both Kadrey and Bartz were class actions brought by authors asserting that the defendants infringed plaintiffs’ copyrights by ingesting the plaintiffs’ works to train the defendants’ respective AI models. Key to both decisions, however, was there was no evidence that either defendant’s AI product was capable of creating infringing works, placing the focus of the fair use inquiry on the defendants’ use of the authors’ works to train the AI model.

Although, as in Thomson Reuters, the Kadrey court confirmed that the most important factor in a fair use analysis is the effect of the infringing work on the market, it ruled against the plaintiffs on the facts presented. The Kadrey court noted that the plaintiffs could have shown a market effect by the competing works generated by defendant’s Large Language Model (LLM), “even if the model can’t regurgitate [plaintiffs’] own works or generate substantially similar ones”, if the LLM “can generate works that are similar enough (in subject matter or genre) that they will compete with the originals and thereby indirectly substitute for them”. The court, however, held that these particular plaintiffs had failed to do so. The court ultimately concluded that the plaintiffs had only argued “harm from the loss of fees paid to license a work for a transformative purpose” which it described as “not cognizable”, holding that the defendant’s use was a fair use. The opinion’s discussion of market effects by competing works, however, offers a trail of breadcrumbs to would-be plaintiffs on how to present a more compelling damages case on similar facts.

In Bartz v Anthropic, the court held that even if a market for AI training data for LLMs were to develop, “that use is not one the Copyright Act entitles Authors to exploit”. The court, however, drew a distinction between the facts in its case and Thomson Reuters, agreeing with the Thomson Reuters court that “using a proprietary system for finding court opinions in 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 transformative many of us will see in our lifetimes”. Anthropic, however, used copies of these works for multiple purposes, 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 involving AI and copyright, holding that the EU text and data mining (TDM) exceptions permit non-profits to compile datasets for AI training from publicly available content. As highlighted in last year’s guide, many nations, such as the UK and Singapore, have similar 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 efficiency 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 parties 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 efficiencies.

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 parties to flag marks for USPTO review that the party believes should be removed from the Principal Register, as well as for sua sponte examination for expungement 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 presents interesting strategic decisions for litigants, as the proceeding cannot be retracted or otherwise dismissed 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 interest overrides private autonomy. Similar to the United 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 classes with vague language for goods and services. This strategy, which was popular until recently, now entails increased risk as trade mark examiners are issuing more frequent partial revocations under L.714-5 of the French Intellectual Property Code. In 2025, the French Supreme Court held in decisions Nos. 23-21.296 and 23-21.866 that products registered in broad classes are subject to partial revocation where a subcategory is more appropriate, finding taxi services too specific to occupy the entire “transport” category, and textiles impregnated with active substances to specific to cover the entire “cosmetics” category. The French courts and trade mark office are, on the whole, emphasising need to avoid “theoretical” protection.

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Overall, there is a trend across the globe towards allowing trade mark offices to act with authority to swiftly carry out their missions of protecting the public from consumer confusion and promoting efficient registers. Practitioners should be aware of the changing landscape, both in artificial intelligence and in trade mark office policies, and should adjust their strategic guidance accordingly.