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Miguel A Amutio, Unsplash

Shady’s back, back again—but this time with limited trademark success. In a prior post, we outlined how rapper Eminem has aggressively pursued protection of his trademarks in the United States and abroad, including a petition before the USPTO seeking cancellation of an Australian beachwear brand’s registration for the mark SWIM SHADY. At the time, related proceedings were still pending in Australia. Now, IP Australia, the government agency responsible for trademark registrations, has weighed in.

Australian Proceedings

As all hardcore Eminem fans—and even non-fans—know, Eminem has performed under several alter egos throughout his career, the most famous being Slim Shady. Variations of the Slim Shady persona are protected by a number of registered trademarks owned by Eminem in the United States, including SHADY and SHADY LIMITED (“Marks”). The Marks are also registered in Australia for a slew of goods—until an Australian company called Swim Shady Pty Ltd. (“Swim Shady”) entered the picture.

In March of this year, Swim Shady filed a petition with IP Australia to cancel the goods in classes 18 (bags) and 25 (clothing) under Eminem’s registrations for the Marks. Both Marks had been registered in Australia since 2002. In a separate proceeding, Eminem opposed Swim Shady’s application for SWIM SHADY for among other things, bags and clothing.  Cancellation of those goods from the registered Marks, would clear the path to registration of the SWIM SHADY mark.

Under Australian trademark law, an application to cancel a registration or certain goods or services covered thereunder from the register may be made for several reasons including that the registered owner has not used the mark in Australia. In this case, Swim Shady sought cancellation of Eminem’s marks from classes covering goods it offers, namely bags and clothing. Although Eminem presented substantial evidence in support of his opposition to Swim Shady’s petition, IP Australia held that the registrations for the Marks should be cancelled. Specifically, it was determined that Eminem had not used the marks in Australia and that there was no likelihood of confusion if the marks were cancelled.

Non-use by Eminem

Maintaining registered trademark rights in Australia depends on actual use of the mark in connection with the relevant goods or services. A registered mark that has not been used since three years after the issuance of registration may become vulnerable to cancellation for non-use. Here, Swim Shady argued that Eminem (specifically Marshall B. Mathers III, the owner of the registrations) was not using the Marks, placing the burden on him to demonstrate either his own use of the Marks or authorized use by another party.

Interestingly, although Eminem submitted evidence of use, most was not attributable to him. Instead, the evidence showed that the Marks were being used by entities such as his record label, and in connection with merchandise sold through Eminem’s official website, the Shady Records website, and related social media channels. IP Australia found this insufficient. To establish authorized use, Eminem needed to show that he exercised control over the other entities’ use of the Marks. Because he was unable to do so, IP Australia concluded that the evidence did not rebut the claim of non-use.

Despite the finding that Eminem had not used the Marks in connection with the registered goods, he still had one remaining avenue for potential success.

No Likelihood of Confusion

Under Australian trademark law, IP Australia has discretion not to cancel a registration from the register, including where doing so could create a likelihood of consumer confusion. Eminem argued that cancelling the registrations for the Marks would do just that, but the argument was unpersuasive. 

Specifically, IP Australia acknowledged that Eminem is a “performer of significant fame in Australia,” but concluded that any reputation demonstrated by the evidence was tied to Eminem as an artist and to the “Slim Shady” persona, rather than to the Marks as indicators of the commercial source of the registered goods. As IP Australia explained, the reputation established by the evidence, “at its highest,” was a reputation in Eminem and the Slim Shady character, not in the Marks “as badges of origin for the Registered Goods.”

In other words, IP Australia readily recognized the strong public association between “Slim Shady” and Eminem’s rap career. What was missing, however, was evidence that consumers associated the Marks with a particular source of the relevant goods. Because that connection was not established, IP Australia declined to exercise its discretion to preserve the registrations.

 The Global Impact   

This outcome is certainly a setback for Eminem. However, because the dispute arose in Australia, one might assume that it has no implications for his trademark rights elsewhere. The answer, however, is more complicated.

Trademark rights are territorial in nature. Accordingly, the loss of any rights in Australia does not per se affect Eminem’s rights elsewhere. But Swim Shady’s win could provide leverage in a dispute spanning several continents. 

As previously noted, Eminem sought to cancel Swim Shady’s US registration for SWIM SHADY. Swim Shady also owns filings for its SWIM SHADY mark in numerous countries, including Japan, Indonesia, the United Kingdom, and New Zealand. Eminem has objected to the filings in Japan and the United Kingdom. In a dispute that spans multiple jurisdictions, a win in one can lead to victory, or leverage for negotiations, in another. This is because one country may be of more importance to a party. So, blocking out an opponent in a key jurisdiction in which they operate, say a country that recognizes one as a “performer of significant fame” may have them rethink their enforcement efforts.  

It’s unknown whether the parties have discussed settlement. Perhaps Eminem objected to Swim Shady’s filings in multiple jurisdictions merely to preserve rights while the parties talked truce. We don’t know for sure. But it may be a safe bet that Shady will be back, back again to battle Swim Shady on the global stage. 

We’ll be there to cover it. Stay tuned. 

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Ochir-Erdene Oyunmedeg, Unsplash

Introduction

In our earlier Earth Day post, we provided an overview of California Senate Bill 343 — the landmark law that rewrites the rules governing when and how recyclability claims may be made on products and packaging sold in California. We noted that a coalition of trade associations had filed suit in the U.S. District Court for the Southern District of California challenging SB 343 on First Amendment and Fourteenth Amendment Due Process grounds, and that the case was “still in the very early stages.” We promised that future posts would discuss the status of that case. Promise made, promise kept.

We have an update — and it is a significant one. On July 14, 2026, the Honorable William Q. Hayes issued a 67-page ruling granting the plaintiffs’ motion for a preliminary injunction, finding SB 343 unconstitutional, and enjoining California Attorney General Rob Bonta and all those acting in concert with him from enforcing SB 343. For businesses that had been racing to assess compliance ahead of the statute’s October 4, 2026 effective date, this ruling provides meaningful — if temporary — breathing room.

But the decision does far more than press pause. It delivers a detailed judicial analysis of SB 343’s constitutional deficiencies across two independent grounds — vagueness under the Fourteenth Amendment, and infringing on free speech under the First Amendment — that will shape the litigation going forward and may influence how California and other states approach recyclability regulation in the future.

Vagueness: Four Provisions Found Likely Unconstitutional

The Court examined four specific provisions of SB 343 and found them to be unconstitutionally vague on their face

“Routinely Becomes Feedstock”

SB 343 requires that a product or package be “of a material type and form that routinely becomes feedstock used in the production of new products or packaging.”  The Court found that the SB 343 does not define the “circumstances under which a product or package qualifies as ‘routinely becom[ing] feedstock.’” Moreover, Cal Recycle’s own mandated Material Characterization Study provides no information regarding the ultimate disposition of sorted materials. As a result, businesses trying to comply with SB 343 may interpret “routinely” different from those seeking to enforce the statute, which “runs afoul of the notice requirements of due process.” Further, the Court found that the recyclability of products may change over time based on shifting market forces. The Court concluded that “the provision fails to provide adequate notice to a business of ordinary intelligence to understand what the law prohibits” and is therefore likely to be unconstitutional.

Basel Convention

As discussed in our original post, to be considered “recyclable” material must be collected for recycling by programs serving at least 60% of California’s population, and must be sorted into streams by facilities serving at least 60% of statewide recycling programs. The 60/60 requirement also requires that sorted materials be “sent to and reclaimed at a reclaiming facility consistent with the requirements of the Basel Convention.” The issue? The United States has signed but never ratified the Basel Convention. As a result, there is no domestic implementing legislation. Cal Recycle itself said it was not required to investigate whether recycling facilities “are consistent with the requirements of the Basel Convention.”  As a result, manufacturers have “no practical ability to trace packaging after consumer use through downstream reclaiming facilities, many of which operate outside the United States.” Without any defining guidance regarding compliance with the Basel Convention, the Court found this provision unconstitutionally vague.

APR Design® Guide

The Association of Plastic Retailers publishes the APR Design® Guide which categorizes materials into several categories ranging from “Preferred” to “Needs Testing.” For plastic packaging, SB 343 requires that such packaging not include materials that “prevent the recyclability of the packaging according to the APR Design® Guide.” The Court found this provision likely vague because the Guide includes intermediate categories such as “Detrimental to Recycling” and “Tolerated But Needs Improvement” that do not clearly correspond to SB 343’s binary “prevent recyclability” standard. The Guide is also “dynamic” and subject to ongoing revision, but SB 343 provides no guidance on which version applies or at what point in time compliance should be measured.

“Ensures” or “Prevents” Recyclability

For non-plastic products and packaging, SB 343 requires that items be “designed to ensure recyclability” and not include components that “prevent” recyclability. The Court found the statute offers “no definition or guidance on what is meant by ensuring or preventing recyclability.” Whether a component “prevents” recyclability depends on downstream market conditions and the operational standards of individual material recovery facilities — factors outside manufacturers’ control.

First Amendment: SB 343 Fails Intermediate Scrutiny

Applying the four-part Central Hudson test for restrictions on commercial speech, the Court found SB 343 likely unconstitutional even after severance of the vague provisions.

Recyclability Claims Are Protected Speech

Both parties agreed that recyclability claims are “potentially misleading” rather than “inherently misleading.” “Inherently misleading” speech can be flatly prohibited, while “potentially misleading” speech can be restricted only if the government satisfies the remaining Central Hudson factors. The Court recognized California’s substantial interests in improving recycling rates and reducing consumer confusion.

SB 343 Relates To Substantial Government Interests.

Unremarkably, the Court concluded that “that California has substantial interests in (1) improving recycling rates and (2) reducing consumer confusion.”

SB 343 Does Not Directly Advance California’s Interests

The Court held that the government failed to carry its burden of demonstrating SB 343 would “significantly alleviate” the harms California identified, the only basis on which the perceived restrictions on free speech would be justified.

On improving recycling rates, the evidence cut the wrong way. Multiple plaintiffs’ member declarations indicated that SB 343’s restrictions would cause manufacturers to strip recyclability messaging from packaging entirely — resulting in more recyclable material going to landfills, not less. At oral argument, defense counsel conceded that “maybe, at the beginning, there will be less recycling.”  The Attorney General’s theory that SB 343 would eventually incentivize manufacturers to redesign products and packaging was, in the Court’s view, speculative and unsupported.

On reducing consumer confusion, the Court found that SB 343’s broad restrictions would cause manufacturers to forgo recyclability claims entirely — leaving consumers with less information than before, not more.  The statute prohibits truthful, qualified claims — such as “Recyclable where facilities exist – check locally” — even where such claims would be accurate and useful to consumers. As we discussed in our earlier post, for products that are recyclable in some but not all areas, a qualified disclosure may be the most accurate statement a manufacturer can make. SB 343 forbids it.

SB 343 Is Not Narrowly Tailored

The Court noted that SB 343’s requirements apply to “a product or packaging that displays a chasing arrows symbol, a chasing arrows symbol surrounding a resin identification code, or any other symbol or statement indicating the product or packaging is recyclable, or otherwise directing the consumer to recycle the product or packaging.” The Court concluded that SB 343 is “more extensive than necessary to advance California’s interest in improving recycling rates” because the “heightened requirements for recyclability claims may … limit rather than increase the flow of information available to consumers seeking to properly dispose of their products and packaging.”

The Court made short shift of the remaining factors, and issued the injunction without requiring a security bond.

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What This Means for Businesses

Does the injunction preclude private actions? As we noted in our earlier post, SB 343 violations can trigger liability under California’s False Advertising Law and the CLRA, including private class actions. Because the Court found SB 343 to be unconstitutional on its face (as opposed to “as applied”), however, the ruling bars (for now) the attempted enforcement through private rights of action. This stands in contrast to the recent ruling from Oregon finding Oregon’s Plastic Pollution and Recycling Modernization Act unenforceable, but only against the plaintiffs in National Association of Wholesaler-Distributors (NAW) v. Feldon, leaving Oregon to continue to enforce the statute against non-parties to that lawsuit.

But the injunction is preliminary. This is not a final judgment on the merits. The case will proceed to further litigation, and the injunction could be modified, dissolved, or made permanent depending on how the merits are resolved.

Several open questions remain:

  • Will the Attorney General appeal? While our crystal ball is not always accurate, it is possible that the Attorney General will either seek reconsideration or appeal the decision to the Ninth Circuit. The Ninth Circuit could very well take a different view, although the multiple infirmities identified by Judge Hayes might lead to a similar conclusions.
  • Will the California legislature amend SB 343? The Court’s opinion provides a detailed blueprint of the law’s constitutional deficiencies. A revised statute that defines key terms, narrows the scope of prohibited speech, and permits qualified recyclability claims could potentially survive review. Of course, there is no indication that the California legislature will be able to move quickly to amend.
  • What should businesses do now? Companies that had been considering options in anticipation of SB 343’s effective date should consult with counsel about whether to pause or continue those efforts. The injunction removes the immediate threat of enforcement, but businesses should be prepared for the possibility that the law — or a revised version — could take effect in the future.

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This post is the second in a series on California SB 343 and recyclability labeling requirements. Our first post, “Born on Earth Day: The Chasing Arrows Symbol Turns 56 — and California Rewrites the Rules,” provides a comprehensive overview of SB 343’s key provisions.

My custom built PC that I have had for years and figured needed some noice pics.
Cristiano Firmani, Unsplash

Artificial intelligence is transforming the legal profession, creating new opportunities and challenges for both corporate legal departments and outside counsel. As AI tools become more integrated into legal workflows, organizations are reassessing how legal services are delivered, measured, and managed.

On July 23, Seyfarth Partner Lauren Leipold will join industry leaders for WIPR Insights’ webinar, In-House and Outside Counsel Relationships in the AI Era: Rethinking Evaluation and Collaboration. The discussion will examine how AI is changing expectations around legal speed, cost, and quality; what in-house legal teams now prioritize when selecting and evaluating outside counsel; and how organizations can balance innovation with accountability.

The panel will also explore the importance of transparency, disclosure, and governance in AI-assisted legal work, as well as practical approaches to strengthening trust and collaboration between legal service providers and their clients.

Lauren will be joined by Ann Palma (Saint-Gobain), Maya Kanter Varfman (AmDocs), and Chris Parsonson (Solve Intelligence).

We invite you to register and join this timely discussion on the evolving future of legal partnerships in the AI era.

In Any Given Sunday, Al Pacino’s character famously describes American football as a game of inches. In this football—umm, soccer—that line has become almost literal: joy, heartbreak, and World Cup survival can now turn on a toe, a shoulder, or a few millimeters.

Just ask Iran.

For a few glorious seconds, Iran had done it. In the 93rd minute against Egypt, Shoja Khalilzadeh bundled the ball into the net. Seattle Stadium erupted. Players sprinted toward the corner flag. Millions of Iranian fans around the world celebrated what appeared to be the winning goal that would send Iran through. Then came the dreaded signal: VAR (Video Assistant Referee). In an instant, joy was shown the red card.

After a lengthy review, the goal disappeared. An Iranian attacker had been offside by mere millimeters when the shot was taken. The celebration lasted longer than the goal itself—a brutal reminder that, in modern football, even a toe can be caught straying past the last defender.

Sound familiar?

Just days later, Croatia experienced perhaps an even crueler ending, another last-minute heartbreak delivered with clinical precision from the VAR booth.

Deep into stoppage time against Portugal, Joško Gvardiol appeared to score an equalizer that would keep Croatia alive. Once again, players celebrated, and fans exploded. And once again, VAR intervened.

This time, television replays couldn’t even show why.

Instead, the official Adidas Trionda match ball detected an almost imperceptible touch by Igor Matanović—possibly nothing more than a brush of his hair. That microscopic contact changed the offside analysis, wiping Croatia’s goal off the scoreboard and ending its World Cup.

Love it or hate it, VAR got both calls right—even if it left fans feeling like justice had gone to penalties.

But these weren’t simply “video reviews.” They were the product of years of engineering and dozens of patents covering computer vision, sensor fusion, inertial measurement units, real-time data synchronization, and artificial intelligence. VAR may look like a referee watching replays, but the real playmaker is the technology underneath.

Behind every controversial offside decision is an astonishing amount of intellectual property—quietly marking the line between goal and no goal.

VAR Is Really Four Technologies Working Together

Most fans think VAR is a referee watching a slow-motion replay.

In reality, today’s semi-automated offside system is an ecosystem of technologies that must all agree before a goal is overturned.

The system answers four questions, each one essential to keeping the technology onside:

  1. Exactly when was the ball played?
  2. Exactly where was every player at that instant?
  3. Did anyone else touch the ball first?
  4. Can all of those measurements be synchronized to within a few milliseconds?

Patent No. 1: Teaching the Ball to Feel

The first challenge isn’t drawing the offside line. It’s determining the exact instant the ball leaves the passer’s foot—because in VAR, timing is everything and late runs are punished mercilessly.

Broadcast cameras typically capture only 50–60 images per second. Between two frames, a professional football may travel several inches. When an offside decision comes down to millimeters, “close enough” isn’t good enough.

That’s the problem addressed by U.S. Patent No. 12,070,655.

The patent is directed to free-flight detection and trajectory modeling for a sensor-equipped sports ball. Using onboard sensors, including accelerometers and magnetometers, the system determines when the ball transitions into free flight, measures characteristics of the ball such as rotation and movement, and constructs a model of the ball’s trajectory through the air. By analyzing sensor data immediately before, during, and after the initiation of flight, the system can detect the moment the ball was struck, headed, or otherwise contacted and then track the ball’s resulting motion.

In other words, the technology is designed to identify when the ball has been played and to model where the ball travels afterward. That makes it a critical component of modern semi-automated offside systems: before officials can determine whether a player was ahead of the second-to-last defender, they must first know exactly when the pass occurred. The ball itself helps answer that question, providing a highly precise timestamp for the touch that triggers the offside analysis.

This is part of the technology that proved decisive in Croatia’s heartbreaking elimination. While television cameras could not definitively show whether Matanović made contact, the IMU inside the Trionda ball recorded a subtle impact. It generated a precise timestamp that reset the offside analysis.

Patent No. 2: Turning Players into Digital Skeletons

Knowing when the ball was played solves only half the problem. Officials must also know where every player was at that precise instant.

U.S. Patent No. 11,150,321 tackles this challenge by combining multiple synchronized cameras with tracked ball position data to reconstruct the three-dimensional positions of players and the ball in real time. Rather than relying on a single television angle, the system fuses multiple viewpoints to generate an accurate spatial model of the play.

FIFA’s implementation takes the concept even further. Multiple roof-mounted cameras continuously track every player while AI estimates roughly 29 skeletal points—including feet, knees, hips, shoulders, elbows, and heads—for each athlete dozens of times every second.

The result isn’t simply replaying the video. It’s a live digital twin of every player on the field, a virtual pitch where every shoulder, knee, and boot is tracked before the flag goes up.

When the system says an attacker was offside by two centimeters, it isn’t estimating from television images. It’s measuring reconstructed three-dimensional body positions synchronized with the exact instant the ball was played.

Patent No. 3: The Ball

The sensor may be the brains of the operation, but first it has to survive inside a World Cup football without turning it into a lopsided science project.

That problem is addressed by U.S. Patent No. 8,771,110, which covers a sports ball containing an internal electronic sensor assembly together with balancing structures designed to preserve the ball’s weight distribution and flight characteristics. The challenge is surprisingly difficult. A sensor, battery, antenna, and supporting electronics all add weight to one portion of the ball. Without compensation, the ball could wobble in flight, spin unpredictably, or simply feel different to players.

The patent solves this problem by embedding the electronic package within the ball while positioning counterbalancing structures elsewhere so that the ball remains dynamically balanced. In effect, the invention allows the ball to become an electronic measuring device while still behaving like a professional match ball.

That may sound mundane, but it is one of the enabling technologies behind modern connected-ball systems. Before a sensor can determine precisely when a player touched the ball, identify a deflection, or generate data for semi-automated offside detection, the sensor first has to be integrated into the ball itself in a way that players never notice. The best compliment to the inventors is that elite players can strike the ball hundreds of times during a match without realizing that sophisticated electronics are hidden beneath the panels.

In many ways, this patent represents the bridge between traditional sporting equipment and modern digital officiating.

The Real Invention: Synchronization

Ironically, the most sophisticated part of VAR isn’t the cameras, the AI, or the sensor inside the ball. It’s synchronization.

Imagine Iran’s disallowed goal. The system had to determine:

  • the precise millisecond the shot was taken;
  • the precise position of every attacking and defending player at that instant;
  • whether any attacker was beyond the second-last defender; and
  • whether every camera and sensor agreed on the timing within just a few milliseconds.

That’s an extraordinarily difficult engineering problem. If any component misfires, the entire decision can be called offside.

It also explains why the patent landscape surrounding VAR is so extensive. Modern officiating depends on computer vision, inertial sensing, wireless communications, sensor fusion, predictive filtering, and real-time event synchronization—all working together before a referee ever walks to the monitor. The whistle may be familiar, but the machinery behind it is anything but old school.

For football fans of the losing teams, VAR has become the player nobody wanted, but everyone has to live with.

For tech geeks and patent lawyers, it’s one of the most fascinating demonstrations of cutting-edge engineering hidden in plain sight.

The next time a stadium falls silent while officials wait for a decision, remember: somewhere behind that simple offside graphic is an ecosystem of patented technology making measurements that no human eye could ever make. In the modern game, the margin between ecstasy and agony may be measured in millimeters, but the IP behind that margin is anything but small-time.

Seyfarth had the honor of participating in and sponsoring the Hispanic National Bar Association (HNBA) VIA Intellectual Property Law Institute (IPLI), a weeklong program held in Washington, DC.

The annual IPLI program offers law students the opportunity to participate in an engaging week of programming with practitioners across the field. Students met with lawyers, judges, regulators, and policymakers from key institutions, including the U.S. Patent and Trademark Office (USPTO), the U.S. Copyright Office, the Federal Trade Commission (FTC), and the U.S. International Trade Commission (ITC). The program also included a visit to the U.S. Supreme Court. The jam-packed week concluded with a closing ceremony and celebratory happy hour for students, volunteers, speakers, and practitioners, hosted by Seyfarth’s Washington, D.C., office.

Seyfarth patent attorney, Joe Lutz, served as a speaker on a panel discussion focused on patent and trade secret law. Seyfarth IP attorneys Robert Terzoli and Sarah Chemli also volunteered their time to serve as mock interviewers, offering students practical guidance. Cory Davis from our Atlanta IP team also attended the conference, while Christa Dommers, Office Managing Partner in Washington, DC, volunteered as both a mock interviewer and mentor, further supporting the next generation of diverse legal talent. The students were impressive and innovative, with exceptional qualifications. Their enthusiasm and passion for IP law were evident and contagious, leaving a lasting impression on everyone who had the opportunity to interact with them.

Throughout the week, IPLI alumni shared their experiences at several events, highlighting the program’s lasting impact. These testimonials served as a powerful reminder that IPLI is more than a summer program focused on IP law; it provides a launchpad and a career-long community of support that continues to benefit its alumni year after year.

Seyfarth deeply values its ongoing partnership with the HNBA and its sponsorship of the IPLI program. IPLI continues to demonstrate an exceptional track record in developing talented and diverse IP professionals and providing them with the resources, mentorship, and connections that will benefit them throughout their careers.

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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.