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Bruno Fernandes, Unsplash

By now, we’re all familiar with the travails of lawyers who use gen AI to draft court papers, but fail to check them and file briefs including fake cases, as well as other significant maladies, resulting from AI hallucinations and being sanctioned for their carelessness. Out of Brazil, however, comes a new twist: according to media reports, a Brazilian court recently sanctioned lawyers for intentionally including hidden messages, known as “prompt injection,” in a court filing, apparently designed to deceive the court and increase the chances of their success.

“Prompt injection” is, essentially, the practice of including hidden text in a document that gives a command to a gen AI program when that document is fed into it. For example, someone submitting a cover letter for a job might include hidden text commanding any AI program reviewing the cover letter to move the application materials to the top of the pile, or to respond if prompted that the applicant is the best suited regardless of the criteria.

In the Brazilian case, the media reports indicate that the lawyers included white text on a white background that essentially attempted to direct gen AI not to contest the lawyers’ petition. The Brazilian court apparently, and luckily, used a sophisticated gen AI program that flagged the text and refused to process the lawyers’ hidden command. It is not clear whether all gen AI programs – particularly free programs used by the general public – would detect a prompt injection, however.

Although this story may unlock a new nightmare for many courts and lawyers, the chances of lawyers repeating this conduct are low. Lawyers are bound by ethical rules that should discourage this type of behavior, and which will lead to serious consequences if undertaken. The American Bar Association and other bar associations have issued ethics guidelines and opinions regarding gen AI and the practice of law, but it remains to be seen whether any rules of professional conduct will be updated to address new issues created by the rise of gen AI. In any event, courts are going to come down very hard on attorneys who attempt any such conduct.

A bigger concern may be the use of prompt injections by non-lawyers who are not bound by ethical rules, and in non-court related matters. What if a business competitor sends a company a letter with a prompt injection that instructs a gen AI program to provide misleading answers to the company or to somehow release confidential information? The competitor may be subject to civil liability if caught, but it could wreak significant havoc in the meantime. 

The threat of a prompt injection may not yet be significant enough to keep lawyers and companies up at night. But stories like the Brazilian incident underscore the need to stay on top of the latest developments with respect to gen AI, and to use secure, confidential, and sophisticated gen AI programs that are able to flag prompt injections. The use of gen AI will continue to evolve in ways—both positive and negative—that we cannot yet predict. Staying up to speed is critical.

An artist’s illustration of artificial intelligence (AI). This image represents how machine learning is inspired by neuroscience and the human brain. It was created by Novoto Studio as part of the Visualising AI project launched by Google DeepMind.
Google DeepMind, Unsplash

For years, the debate surrounding artificial intelligence and patents has focused on a relatively simple question: Can AI be an inventor?

At least in the United States, the answer is currently no. Inventors must be natural persons.

Problem solved. Or perhaps not.

While lawyers, courts, and the USPTO have spent the past several years debating whether AI can be listed on a patent application, a more interesting question has quietly emerged.

What happens when AI does not invent the technology, but instead invents the innovation strategy?

Patent law revolves around the concept of conception. The Federal Circuit has repeatedly described conception as the touchstone of inventorship. Put simply, an inventor must possess a definite and permanent idea of the complete invention. The inventor must know what the invention is before reducing it to practice.

The question becomes more complicated as AI systems evolve from research assistants into innovation engines.

Researchers are developing platforms that combine methodologies such as TRIZ (Theory of Inventive Problem Solving), graph databases, and multi-agent AI frameworks. Rather than simply answering questions, these systems analyze existing technologies, identify technical contradictions, generate potential solutions, predict future development paths, and even recommend patent strategies.

Imagine an engineer working on battery technology. The engineer asks an AI system how to improve charging efficiency without increasing heat generation. The AI analyzes thousands of patents, technical papers, and product specifications. The AI identifies an overlooked technical relationship, proposes a novel architecture, predicts performance improvements, recommends claim language, and suggests a continuation strategy to protect adjacent implementations.

The engineer reviews the proposal, recognizes its value, and instructs the engineering team to build it.

Who conceived of the invention?

Under current law, the answer may still be the engineer. After all, the engineer identified the problem, evaluated the solution, and directed further development.

But the facts begin to look different from the traditional conception story that patent law has relied upon for decades.

Historically, the inventor had the idea and used tools to implement the idea. Increasingly, the tool may be generating the idea while the human decides whether the idea is worth pursuing.

The USPTO’s Answer: AI Is a Tool

In November 2025, the USPTO revised its guidance on AI-assisted inventions and largely simplified the analysis. The Office rescinded its earlier guidance and explained that there is no special inventorship standard for AI-assisted inventions. The same legal principles apply regardless of whether an inventor used a laboratory instrument, a computer program, a research database, or an AI system.

The USPTO’s position is straightforward: AI systems are tools.

According to the guidance, AI is analogous to software, laboratory equipment, or other instruments that assist human inventors. AI may provide information, suggestions, and even ideas, but AI itself cannot be an inventor. The relevant inquiry remains whether a natural person conceived the claimed invention.

For today’s AI systems, that approach makes a great deal of sense.

The challenge is that tomorrow’s AI systems may look very different from today’s.

The Real Question

The recent USPTO guidance treats AI as a tool, and for today’s systems that characterization is entirely reasonable.

But the guidance also highlights a deeper issue.

Patent law was built on the assumption that conception occurs in the mind of a human inventor. The doctrine works well when humans generate ideas and machines help execute them. The doctrine becomes more difficult to apply when machines increasingly generate ideas and humans decide which ones deserve attention.

The harder question is whether future AI innovation platforms will remain merely tools, or whether they will become something patent law has never encountered before: systems capable of generating the very conception that inventorship doctrine was designed to identify.

The USPTO has answered today’s question by confirming that AI is a tool, not an inventor.

Whether that answer remains sufficient ten years from now is far less certain.

And if that day arrives, the most important person in the inventive process may not be the engineer, the patent attorney, or even the inventor.

It may be the person who wrote the prompt.

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Benjamin Cheng, Unsplash

A Boston‑based jewelry brand, now reintroduced as CLUB COASTAL, illustrates that resolving one trademark dispute does not prevent another. As discussed in our prior post, the conflict between Lagos and Coastal Caviar centered on the shared use of CAVIAR for jewelry, raising questions about similarity of marks, market overlap, and scope of protection for CAVIAR as a trademark for jewelry. That dispute has since been settled. So, the answer to the various questions may not be known. Further, Coastal Caviar started moving forward under a new name.

But the shift to CLUB COASTAL presents a different issue—one that highlights the importance of clearance prior to adoption of a new trademark.

Coastal Caviar has filed new applications for CLUB COASTAL covering clothing and online retail store services featuring clothing and jewelry. However, existing registrations for COASTAL (covering clothing and corresponding retail services) and COASTAL and Design (covering jewelry) are owned by third parties.

CLUB COASTAL may be viewed as confusingly similar to these prior marks:

  • The dominant term of each mark may be considered COASTAL;
  • CLUB may be perceived as a modifier rather than a meaningful point of distinction;
  • The goods and services, clothing, jewelry, and related retail, may be considered similar or related.

As a result, CLUB COASTAL could be found confusingly similar to the prior registered marks. Further, Coastal Caviar could find itself in a case of déjà vu all over again if an owner of the prior registered marks raises an objection. 

This underscores a familiar but often overlooked principle: rebranding does not eliminate risk if the new mark has not been cleared. Even where a brand is moving away from one dispute, it may step directly into another if the new name overlaps with existing third‑party rights. That makes clearance essential before filing, launching, or investing in a new name. At a minimum, that analysis should consider:

  • Prior registered and applied‑for marks using the same dominant term;
  • Whether additional wording meaningfully distinguishes the mark;
  • The relatedness of goods and services; and
  • The availability of a mark not already crowded by similar uses.

Clearance can save time, money, and headaches. It can also prevent rebrands, which can be expensive. Just like a bottle of champagne and tin of caviar. 

We’ll keep an eye out and provide any further updates.

If you feel the desire to write a book, what would it be about?
Glenn Carstens-Peters, Unsplash

AI is now a core part of creating modern marketing materials. Creative teams are using AI to create content, personalize experiences, streamline design workflows, and scale creative production faster than ever. As these AI tools continue to evolve, so do the opportunities and the risks.

This guide breaks down challenges marketers face today and the practical steps leading brands are taking to use AI confidently and responsibly.

How AI Is Being Used in Marketing Today

Marketers increasingly rely on AI to:

  • Generate copy, images, videos, and campaign concepts
  • Personalize customer experiences using real‑time data
  • Speed up design and production cycles
  • Support creative ideation and experimentation

While AI has proven valuable in supporting the creative process, it is not without its pitfalls as some early AI-driven campaigns have received negative reactions, including luxury brands being called out for visuals that felt “tacky” or off‑brand, and AI-powered campaigns facing criticism for lacking originality. These examples highlight a core truth: AI must enhance a brand’s identity, not compromise it.

Key Issues AI Presents for Marketing Teams

1. Creative Ownership & Copyright Ambiguity

Because many AI systems are trained on massive datasets that may include copyrighted creative work, outputs can unintentionally resemble existing designs, art, or media.
For marketers, that creates uncertainty around:

  • Who owns AI-generated content
  • Whether outputs risk mimicking protected material
  • Potential IP disputes with copyright owners

How smart marketing teams protect themselves

  • Asking AI vendors to explain their training data sources
  • Including clear IP and indemnification language in contracts with AI vendors and partners
  • Human review of AI outputs for recognizable third‑party material before publishing

2. Data Privacy & Targeting Risks

AI-powered marketing often uses historical customer behavior, segmentation, and predictive profiling, all of which practices may trigger privacy laws, such as GDPR, the California Consumer Privacy Act (CCPA), and industry-specific regulations in areas such as healthcare and finance.

How brands reduce privacy risks

  • Running privacy and data‑protection assessments before adopting new AI tools
  • Ensuring they have a lawful basis for targeted advertising and profiling
  • Minimizing data collection to limit exposure
  • Keeping sensitive data inside secure or private AI environments
  • Tracking who accesses customer data to support compliance audits

All of these steps should be taken in concert with the brand’s legal team to ensure compliance with all applicable laws.

3. Deepfakes, Fabricated Content & Brand Harm

AI can generate realistic images, videos, and audio that look like real people—or real brands. Without proper guardrails, this can lead to:

  • Impersonation
  • False endorsement
  • Right‑of‑publicity concerns
  • Reputational damage

How marketers stay safe

  • Prohibiting the use of real individuals or their likeness in any form in AI-generated content without explicit permission
  • Implementing content-review workflows before campaigns go live
  • Training staff on how to spot defamation, impersonation, and other reputational risks

4. Bias, Manipulation & Consumer Trust

AI models can unintentionally reinforce stereotype-driven patterns or produce unfair targeting decisions. This exposes brands to consumer-trust issues and potential regulatory scrutiny.

How companies ensure fairness

  • Building internal AI‑governance and review frameworks
  • Testing their tools for biased outputs
  • Making disclosures clear and giving customers easy ways to report issues

Operational Challenges Marketers Are Reporting

AI is not just a legal or ethical concern—there are day‑to‑day reliability issues that can disrupt campaign performance.

Common AI “hallucinations”

  • Made-up statistics
  • Inaccurate compliance statements
  • Incorrect product claims
  • Fake testimonials

Teams also report issues with adversarial prompts (“jailbreaks”) where AI tools behave unpredictably or produce unsafe content.

The impact on marketing operations

  • 40% of marketers had to pause or pull campaigns
  • One‑third experienced brand or PR setbacks
  • Many cited wasted budgets, client dissatisfaction, and legal delays

Stronger AI Practices Leading Marketers Are Adopting

  • Use of AI content‑screening tools: Checking for potential copyright similarities before publishing
  • Documentation: Keeping records of human involvement and editorial review
  • AI usage policies: Defining approved tools, review steps, and escalation paths for legal or compliance review

Bottom Line

AI is reshaping marketing faster than any previous technology shift, but major questions around copyright, data usage, and content authenticity are still unfolding in the courts. The marketers who succeed won’t be the ones moving the fastest, but rather those adopting AI with purpose, strategy, and smart safeguards.

As fearsome as Godzilla has proven to be over the decades, the indomitable kaiju may have found its foil in Japanese copyright law.  A Tokyo court recently found several individuals guilty of violating Japanese law for publishing spoiler-heavy posts, including in relation to a recent Godzilla movie, on an entertainment review website.  The penalty for one of the individuals?  An 18-month jail sentence and a stiff monetary fine (equivalent to over $6,000 U.S.) according to press reports.

The case arose based upon complaints brought by a Japanese trade group, Content Overseas Distribution Association (CODA) on behalf of the owners of the IP rights to Godzilla and an anime series called Overlord, Toho Co., Ltd. and Kadokawa Corporation.  Police investigated and ultimately arrested the individuals behind the website and posts, including the apparent website owner Wataru Takeuchi.  Japanese prosecutors brought a criminal case, overseen by Tokyo District Court Judge Jun Shimato.  On April 16, 2026, Judge Shimato found that the descriptions of the scenes, plots, and elements of the entertainment being “reviewed” in the posts on the website in question went beyond mere “fair use” of the elements of the works. 

Copyright laws in most countries—including the United States—allow certain descriptions of films, TV shows, and other works, which might otherwise be considered infringing, if the author is writing a commentary on, or review of, the works.  In this case, however, Japanese prosecutors argued that the posts on the website in question contained so much detail that they crossed over from mere commentary to being an unauthorized adaptation.  For example, some of the posts in question contained long quotes of verbatim dialogue from Godzilla Minus One and Overlord, published along with numerous images from the works.  The prosecutors successfully argued that these posts were so detailed, and contained little to no commentary, such that the posts might discourage consumers from actually watching the movies or anime because they would already know substantial details about the works.  The prosecutors also alleged that the website made hundreds of thousands of dollars in ad revenue, driven by views of their posts, including posts about Godzilla and Overlord.

Although U.S. infringers won’t face this kind of jail time, the arguments raised in the Japanese case are not so different from those seen in many litigations over commentary versus adaptations in the U.S.  One example is a famous U.S. Court of Appeals decision from the early 1990s, Twin Peaks Productions v. Publications International (which you can read more about here).  In that case, the owners of the IP from the cult TV show Twin Peaks argued that an unauthorized book was so detailed that it would dissuade consumers from renting or buying episodes of the show.  The plaintiffs ultimately prevailed in that case, although the infringers only had to pay monetary damages, rather than spend time in jail.

The Japanese case provides a good reminder: think before you post those spoilers and consider whether you are crossing the line from commentary to adaptation.  Websites and social media pages that focus on detailed, spoiler-heavy film summaries may find themselves in the cross-hairs of companies that want to protect their IP. 

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Compagnons, Unsplash

1970: The Birth Of A Symbol

On April 22, 1970, the very first Earth Day was celebrated.  In its honor, the Container Corporation of America — then one of the nation’s largest producers of recycled paperboard — sponsored a design contest to symbolize recycling.  Gary Anderson, a 23-year-old architecture student at the University of Southern California, submitted the winning entry: an equilateral triangle formed by three curved, chasing arrows intended to represent the concept of a closed-loop recycling process.

With no one claiming exclusive rights to it, the symbol quickly became ubiquitous. Over the following decades, it appeared on an enormous range of products and packaging — from plastic bottles to cardboard cartons to items that were rarely, if ever, actually recycled. In the 1980s, the Society of the Plastics Industry introduced a related system of resin identification codes — the numbers 1 through 7 placed inside a triangle of arrows — to identify the type of plastic resin used in manufacturing. Although these codes were designed for identification purposes only, many consumers understandably interpreted them as confirmation that a product was recyclable.

By the 2020s, a growing consensus had emerged — among environmentalists, industry groups, and regulators alike — that the gap between what the chasing arrows symbol implied and what actually happened to products at end of life had become significant. California’s legislature responded with Senate Bill 343.

What Is SB 343?

California Senate Bill 343, due to go into effect on October 4, 2026, establishes new standards governing when and how recyclability claims may be made on products and packaging sold in the state. The law declares that recyclability claims should be truthful and accurate, and that consumers should receive useful information about how to properly handle products at end of life.

The law also addresses broader environmental marketing claims, imposing documentation requirements on a range of “green” advertising terms.

Below is an overview of the law’s key provisions.  Future posts will discuss the status of the case seeking to enjoin enforcement of SB 343, the interaction between SB 343 and other California recycling statutes, the interaction between SB 343 and other State’s recycling laws, and other issues as the effective date of SB 343 draws near.

Who Is Impacted By SB 343?

The law prohibits “a person from offering for sale, selling, distributing, or importing into the state any product or packaging for which a deceptive or misleading claim about the recyclability of the product or packaging is made.”  Although its reach is very broad, it does exclude any “wholesaler or retailer who does not initiate a representation by advertising or by placing the representation on a package.”

When Does SB 343 Become Effective.

October 4, 2026.  However, on March 17, 2026, a coalition of 18 trade associations representing food producers, packaging manufacturers, grocers, and other industries filed a complaint in the U.S. District Court for the Southern District of California challenging the constitutionality of SB 343. The plaintiffs argue that SB 343 violates the First Amendment and is unconstitutionally vague under the Fourteenth Amendment’s Due Process Clause, and enforcement should therefore be enjoined.  As of this writing, the case is still in the very early stages, so it remains to be seen how it will play out.

What Does SB 343 Do?

1. It Regulates Broad Environmental Marketing Claims

SB 343 goes beyond recycling symbols. The law imposes documentation requirements on any person who represents — in advertising or on product labels — that a consumer good is “not harmful to, or is beneficial to, the natural environment.” This includes terms such as:

  • “Environmental choice,” “Ecologically friendly,” “Earth friendly”
  • “Environmentally friendly,” “Ecologically sound,” “Environmentally sound”
  • “Environmentally safe,” “Ecologically safe,” “Environmentally lite”
  • “Green product,” or any other like term

Any person making such claims must maintain written records documenting: the basis for believing the claim to be true; any significant adverse environmental impacts associated with the product; measures taken to reduce those impacts; any permit violations associated with production or distribution; and whether the product conforms with FTC Guidelines for Environmental Marketing Claims.

2. It Sets New Rules for Recyclability Claims

The law makes it unlawful to offer for sale, sell, distribute, or import into California any product or packaging bearing a deceptive or misleading recyclability claim.  Under SB 343, a product displaying a chasing arrows symbol, a resin identification code inside a chasing arrows symbol, or any other symbol or statement indicating recyclability is deemed to be a deceptive or misleading claim unless the product satisfies specific statewide recyclability criteria.

3. It Establishes Specific Recyclability Criteria

To qualify for a recyclability claim, a product or packaging must meet four benchmarks:

  • Collection Threshold: Collected for recycling by programs serving jurisdictions encompassing at least 60% of California’s population.
  • Sorting and Processing: Sorted into defined streams by large-volume facilities serving at least 60% of statewide recycling programs, with those streams sent to reclaiming facilities consistent with the Basel Convention.
  • Design for Recyclability: Designed without components, inks, adhesives, or labels that prevent recyclability, as assessed under the APR Design® Guide (for plastics) or analogous standards (for non-plastics).
  • No Harmful Chemicals: Free of intentionally added PFAS chemicals or PFAS at or above 100 parts per million as measured in total organic fluorine.

4. Material Characterization Study

SB 343 required California’s Department of Resources Recycling and Recovery (CalRecycle), to study which types and forms of material are commonly sorted and reused to make new products and packaging.  CalRecycle published the results in its SB 343 Final Findings Report on April 4, 2025, triggering the effective date of SB 343 for 18 months later, namely October 4, 2026.  The Report provides guidance to companies impacted by SB 343 regarding what goods are, and are not, considered recyclable.  The report is intended to be updated at least every five years.

5. It Restricts Resin Identification Codes

The law prohibits resin identification codes from being placed inside a chasing arrows symbol unless the product meets the statewide recyclability criteria. A resin code placed inside a solid equilateral triangle — rather than a chasing arrows triangle — is not subject to this restriction.

6. It Imposes Recordkeeping and Transparency Requirements

Any person who uses the term “recyclable,” displays a chasing arrows symbol, or otherwise directs a consumer to recycle must maintain documentation demonstrating compliance with the recyclability criteria. This documentation must be made available to any member of the public upon request.

7.  It Creates Penalties for Non-compliance And Opens The Door To Class Action Liability

Violations constitute a misdemeanor under California law. Compliance with the FTC Guidelines is generally a defense, but this safe harbor does not apply to claims involving recyclability symbols or resin codes regulated under SB 343.  More importantly, as any company that does business in California knows, California’s False Advertising Law and the California Consumer Legal Remedies Act (CLRA) both prohibit misleading and deceptive advertising, with the latter providing a private right of action that allows consumers to file class actions.

Conclusion

From its origins as a student design contest entry in 1970, the chasing arrows symbol has become central to how consumers understand — and sometimes misunderstand — recycling. SB 343 represents an effort to close the gap between recyclability claims and recycling realities. At the same time, the pending legal challenge raises substantial questions about the law’s constitutional boundaries. Businesses operating in California should stay informed and consult with legal counsel to understand how these developments may affect their products and marketing practices.

This blog post is for informational purposes only and does not constitute legal advice. Please consult with legal counsel regarding your specific compliance obligations under California Senate Bill 343.

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JC Gellidon, Unsplash

Brackets are set. Bets are placed. As the biggest college basketball game of the year tips off this weekend, fans across the country will be wagering on the outcome of the FINAL FOUR® after the NCAA lost an initial bid to block DraftKings from using its trademarks in connection with the famed MARCH MADNESS® tournament. But the NCAA seems poised to continue the fight against unauthorized references to its marks on digital gambling platforms, calling into question how courts should apply nominative fair use principles in modern, interactive commercial settings.

Those who are familiar with the NCAA’s aggressive enforcement history know the organization’s stance is not accidental. The annual basketball tournament is the NCAA’s primary revenue engine, with media and licensing revenues tied closely to exclusivity and sponsorship integrity. Failure to police unauthorized uses of these marks by third parties risks not only dilution, but also naked‑licensing arguments that could weaken the strength of those valuable assets. Therefore, it is not unusual to seek a spike in cease-and-desist letters every March involving marks such as MARCH MADNESS®, FINAL FOUR®, SWEET SIXTEEN®, and ELITE EIGHT®.

However, the NCAA’s recent lawsuit against DraftKings in the Southern District of Indiana centers around more than a typical, generic advertising slogan such as “March Madness Sale” or “Final Four Giveaway,” communicated through traditional media channels. The NCAA alleges that DraftKings has used its tournament marks throughout DraftKing’s digital sportsbook platform, betting menus, and promotional materials to market wagering on tournament games. According to the complaint, integration of the marks into the platform in this manner falsely suggests affiliation, sponsorship, or endorsement by the NCAA, which has publicly rejected ties to sports gambling and declined sportsbook sponsorships.

The court denied the NCAA’s motion for a temporary restraining order against DraftKings, finding that although the NCAA was perhaps likely to prevail on the merits of its trademark infringement, false association and unfair competition, and trademark dilution claims, it had not demonstrated irreparable harm sufficient to block DraftKings on an emergency basis.

DraftKings, for its part, pointed out that it has used the marks for several years without issue. It asserts that the terms “March Madness” and “Final Four” are “universally recognized” names for the tournaments, and are necessary to accurate describe betting markets tied to real-world events. This defense, based on the well-established nominative fair use doctrine, highlights a growing issue: as betting, prediction markets, and live‑data products continue to evolve, where does identification end, and infringement begin?

The problem for DraftKings is how the marks are actually being used in practice.

Modern trademark disputes increasingly turn on presentation and context, not just wording. According to the NCAA’s filings, the challenged uses appeared repeatedly and prominently within DraftKings’ interface, sometimes stylized, and embedded directly within revenue‑generating betting menus and promotions, infiltrating user navigation flows.

That matters. Courts analyzing nominative fair use often focus on whether the defendant’s use functions as a designation of source rather than mere identification. When a mark becomes part of a structured menu or branded user experience—especially in commerce adjacent to sponsorship—it begins to look less like neutral identification and more like use of a trademark as a source identifier. Betting apps integrate event names directly into menus and user flows, creating persistent brand adjacency that did not exist in print ads or “odds tables” of the past.

The NCAA’s trademarks are one of its few leverage points to disassociate itself from the commodification of gambling on its games, especially with respect to potential tarnishment. Therefore, it is likely that the organization views trademark policing as existential at this point. Otherwise, the floodgates on uncontrolled associations will open, and the NCAA will lose control over its ability to shape public perception of its brand.

Unlike merely slapping an NCAA logo on a billboard, DraftKings and similar platforms present more of a danger to the underlying brand association. The marks are beginning to appear within the architecture of a product itself, organizing how users experience the service, and sitting adjacent to calls-to-action that generate profit. In other words, this use of the marks crosses the line from informational to operational, and arguably becomes unlicensed brand deployment.

The DraftKings litigation will become an important test case in the application of nominative fair use in an increasingly interactive digital world, and will likely shed light on how these issues will play out in the context of online marketplaces, social media platforms, AI-driven interfaces, recommendation engines, and prediction markets in general. Where trademark use is experiential—not just textual—how will the fair use doctrine evolve?

For IP practitioners, this grudge match is well worth watching beyond March.

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Milad Fakurian, Unsplash

Seyfarth’s 2026 Commercial Litigation Outlook reinforces a key reality for IP practitioners: artificial intelligence is not just driving innovation—it is fundamentally reshaping how intellectual property is created, protected, and challenged. This year, Seyfarth’s Intellectual Property team contributed insights focused on the growing risks to trade secrets, ownership rights, and proprietary information in an AI-driven environment.

One of the most pressing issues identified in the Outlook is the rapid adoption of AI-enabled tools in everyday business operations. Technologies like automated notetaking and meeting summarization are generating new forms of data that may capture highly sensitive or proprietary information. For companies relying on trade secret protection, this creates heightened risk of inadvertent disclosure, loss of confidentiality, and disputes over the accuracy and ownership of AI-generated content.

From an IP perspective, these developments raise critical questions: Who owns AI-generated outputs? How can companies preserve trade secret protection when information is passively recorded and widely distributed? And how should organizations structure governance to ensure that key innovations remain protected?

The Outlook makes clear that strong information governance is now central to IP strategy. Companies that implement clear policies around recording, restrict access to AI-generated materials, and define authoritative records will be better positioned to protect their innovations and defend against litigation.

These issues sit at the intersection of intellectual property, commercial litigation, and eDiscovery—making a cross-disciplinary approach essential. To explore these challenges in greater depth, Seyfarth’s IP, litigation, and eDiscovery teams will come together for the first session of the 2026 Commercial Litigation Outlook Webinar Series:

Securing Innovation and Competitive Edge in the AI Era
Tuesday, March 24, 2026

This session will provide:

  • IP-focused insights on AI inventorship, patent eligibility, and copyright challenges
  • Practical strategies for protecting trade secrets in an AI-enabled environment
  • Perspectives from litigation and eDiscovery practitioners on emerging evidentiary risks
  • Cross-functional guidance on managing legal exposure tied to AI tools and technologies

Download the 2026 Commercial Litigation Outlook and register for the webinar to learn how to align your IP strategy with today’s rapidly evolving risk landscape.

Close up of colorful faceted beads on a textured surface with golden bokeh lights in the background.
Kasem Sleem, Unsplash

A Boston-based jewelry company, with a storefront steps away from Seyfarth’s Boston offices, is at the center of a trademark dispute that is all too familiar. In Lagos, Inc. v. Coastal Caviar, LLC, Case No. 2:26‑cv‑00447 (E.D. Pa) an up-and-coming brand made popular by social media meets a Goliath-like competitor that wants to shut down the newcomer. At first blush, this may seem cut and dry because the marks at issue, CAVIAR (a mark used by Lagos) and COASTAL CAVIAR (a mark used by, you guessed it – Coastal Caviar) share an identical term, and the goods offered under each are jewelry. But this case may not be like shooting fish(roe) in a barrel. CAVIAR evokes a certain type of jewelry and may be entitled to a limited scope of protection. The parties’ goods may also be distinguishable. This could open the door for potential coexistence. 

Lagos has been selling its signature CAVIAR brand jewelry since 1989, and it secured a federal registration for its mark in 1992. The company’s textured, beaded designs became somewhat iconic, appearing everywhere from department stores to red carpets. Lagos reports more than $250 million in CAVIAR jewelry sales and over $40 million in advertising investment supporting the brand. The CAVIAR brand appears to be central to the company’s identity.      

Coastal Caviar by contrast, launched more recently, selling handcrafted charm necklaces and bracelets online. In December 2023, it began selling those goods under its COASTAL CAVIAR mark, which Lagos says is confusingly similar to its own. And critically, Coastal Caviar uses its mark on products in the same channels of trade: jewelry.

Coastal Caviar filed a trademark application for its mark in late 2024. This prompted Lagos to file with the United States Patent and Trademark Office (USPTO) a Letter of Protest, i.e., a letter providing evidence to support a potential refusal. The USPTO issued a refusal to register COASTAL CAVIAR based on Lagos’s prior CAVIAR registration. Coastal Caviar ultimately abandoned the application but continued using its mark online and at a brick-and-mortar shop in Boston’s Seaport neighborhood. The company is slated to open a second location next month. 

Lagos has spent decades building the reputation of its CAVIAR jewelry line, supported by its federal registration and extensive nationwide sales and advertising. But before assuming that Coastal Caviar should rebrand, it’s worth considering the merits of the case and whether the marks may peacefully coexist in the market, particularly because CAVIAR may not be provided a broad scope of protection for jewelry.

Lagos’s CAVIAR mark is long‑used, and its registration is incontestable, i.e., it cannot be challenged on certain grounds, including mere descriptiveness. But Lagos acknowledges that the term caviar refers to the look of its beaded jewelry designs. The company describes its signature jewelry style as “fish‑roe‑like beading,” meaning caviar arguably has a suggestive or even descriptive quality for this aesthetic. Conversely, Coastal Caviar appears to have adopted its mark as a reference to a love of the ocean. Separately, the word caviar may mean something to be considered the best of its kind. Accordingly, caviar evokes a high-quality product and may be considered laudatory. Such terms are generally considered weak when it comes to trademarks.      

If a term describes, hints at, or touts a product or its features, it may be entitled to a narrower scope of protection than those that do not. That doesn’t eliminate Lagos’ rights, but it may open space for coexistence, especially where brands can differentiate themselves.

Lagos also alleges that the goods are targeted to identical consumers. But the price points may suggest otherwise as many of Lagos’s CAVIAR goods cost thousands of dollars while COASTAL CAVIAR goods appear to predominantly cost hundreds of dollars or less. The difference in price may attract distinct consumers. Also, the high cost of some of Lagos’s goods may cause consumers to take more care when making purchasing decisions. These factors may weigh against a likelihood of confusion. 

In its lawsuit Lagos seeks broad injunctive relief, profits, and other remedies. But enforcing a potentially suggestive mark against a younger brand using a CAVIAR mark in a different conceptual way (ocean‑inspired vs. bead‑texture‑inspired) creates litigation uncertainty. This may leave room for carefully structured coexistence—one that limits confusion while allowing the marks to coexist and both brands to thrive.

Trademark coexistence agreements often succeed when brands craft mutually protective guardrails. This may include restrictions on how the mark COASTAL CAVIAR may appear, where Coastal Caviar may offer its goods, the price points of Coastal Caviar’s goods, and limitations regarding specific types of jewelry marketed under the COASTAL CAVIAR mark.  If an ongoing coexistence agreement proves unreachable, Coastal Caviar could seek to negotiate a temporary coexistence period to shift toward a new long‑term mark without abrupt disruption.

This case illustrates a lesson for emerging companies: even where another brand’s mark appears dominant, the path forward may not always be binary (rebrand or fight). Sometimes, the smartest move is to meet in the middle. If a coexistence agreement can be reached here, maybe the parties can share champagne and caviar.

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Mana Akbarzadegan, Unsplash

Patent attorneys spend a lot of time explaining two deceptively simple concepts: novelty and obviousness. Both rise and fall on one thing: prior art. Most inventors assume prior art means a patent or some obscure technical paper written by someone surviving on cold brew and conference coffee.

That assumption is wrong.

Prior art is anything made available to the public before you file your patent application. Not just patents. Not just academic papers. We are talking about movies, television shows, YouTube videos, blog posts, product demos, and comic books.

…and occasionally, Borat.

There is an actual patent application that tried to claim what can best be described as a sling-style male garment (U.S. Patent Application No. 12/071,878 – Publication: US20090216171). The application described the invention using the kind of terminology patent lawyers love: structural support members, anchoring points, tension distribution, and other language designed to make a piece of fabric sound like a suspension bridge.

The examiner read the application and had a moment of déjà vu.

Why? Because millions of people had already seen essentially the same garment in the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan. The examiner cited a screenshot from the movie as prior art.

Imagine opening your Office Action and discovering the rejection includes Borat standing on a beach wearing the claimed invention. That is not the moment you want to begin explaining obviousness doctrine to your client.

As Borat might say: “Great success… for the examiner.”

And Borat is not the only comedian who has ruined someone’s patent dreams.

In another well-known example, a 1949 Donald Duck comic showed characters raising a sunken ship by filling the hull with ping-pong balls to displace water. Years later, a Dutch engineer filed a patent application describing a buoyancy-based salvage method using spherical displacement elements (Dutch application NL 6514306).The application was technically correct and elegantly written. 

Unfortunately, one famous duck had already solved the problem decades earlier.

The examiner essentially responded: “Quack.”

Result: rejection.

Once prior art appears, the next phase of the conversation with an inventor tends to follow a very predictable script: “But mine is different.”

The explanations usually follow familiar themes. The material is different. The shape is slightly different. A buckle has been added. Maybe the color changed. Sometimes the pitch is delivered with great confidence, as if the Patent Office has never encountered a buckle before.

Patent law is generally unimpressed.

If the core idea is already public, the analysis shifts from novelty to obviousness. At that point, the question becomes whether the differences would have been obvious to someone skilled in the field. Minor tweaks rarely save the day. Adding buckles to Borat’s swimsuit does not suddenly transform it into a breakthrough in garment engineering.

Another misconception is that patent examiners only search patent databases. That may have been closer to reality twenty years ago. Today, examiners search patents, academic publications, archived websites, product documentation, videos, historical media, and just about anything else that has ever been made publicly available.

Now we are entering the era of AI-assisted search tools capable of analyzing enormous bodies of information. Soon enough, examiners may have tools powerful enough to comb through the entire internet in seconds. In Borat terms, “Very nice.”

Before filing a patent application, the question should not simply be: “Has anyone patented this?”

The better question is: “Has anyone shown this to the public anywhere?”

Because once an idea becomes public, even in a movie scene or a comic panel, it can become prior art. The good news is that with the rise of AI-assisted search tools, prior art searching has become much easier. At a minimum, it is worth running a quick search before investing too much time in your next bathing suit breakthrough. Otherwise, you may find yourself opening an Office Action that cites a screenshot of Borat standing on a beach, at which point your legal arguments may feel like you just showed up to the beach without a towel.

At that point, the best response may simply be,“Wa wa wee wa.”

Then start brainstorming the next invention.