TRENDS TO WATCH IN 2026
Artificial Intelligence
- Ongoing and future infringement litigation between rightsholders and AI companies.
- State legislation regulating AI and federal efforts in the US to preempt state laws.
- Issues arising from efforts to comply with US, EU, and other international case and statutory laws on use of AI in the global marketplace.
- Issues arising for lawyers using AI, including obligations to review and verify AI-generated work product and obligations to protect confidential and proprietary content.
Deepfakes
- Federal and state legislative and court developments in the US involving deepfakes.
- The leading Federal legislative effort is the “Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2025” a/k/a the “NO FAKES Act.” This would regulate use of “digital replicas,” defined as “a newly created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual.” It is still in the committee process and has not been voted on by either the Senate or the House.
Influencer and celebrity marketing agreements
- Social media influencers and content providers on YouTube, Instagram, and Tik Tok can have massive numbers of followers and can become entrepreneurs in their own right with their own products and trademarks. We anticipate more trademark disputes arising from infringing marks, counterfeits, fake accounts, and other issues.
- Celebrity marketing agreements and endorsements must follow FTC guidelines concerning disclosure of compensation. In some cases, celebrities have been accused of promoting counterfeits of brand-name products.
- Another emerging issue is whether advertisers must disclose computer-generated influencers, as a recently enacted NY state law will soon require, or whether the recently issued Executive Order attempting to pre-empt state laws that overly burden the development of AI systems will carry the day.
Copyright and Trademark in the US
- Continued litigation of statute of limitations issues in copyright disputes.
- Continued litigation over the extraterritorial reach of the Lanham Act after the Supreme Court’s Abitron decision.
TRADEMARK
Changes to Nice Classification of Goods and Services
Effective January 1, 2026, the 13th Edition of the Nice Classification of goods and services came into effect, introducing several important changes to classification of goods and services. These changes could involve reclassification, addition of new goods or services, or changes in wording, all intended to account for new technologies and market realities. A few examples are: eyewear (eyeglasses, sunglasses, lenses, and frames moved to Class 10); essential oils (redistributed depending on end use – Class 3 for cosmetics, Class 5 for medical, and Class 30 for food), airport lounge booking (added to class 43); hand tools and implements, hand-operated (wording changed to hand-operated hand tools and implements). These and other changes will apply to all new applications. There is no current requirement to reclassify existing applications and registrations.
Takeaways: Trademark owners should take these changes into account when considering whether to update watching services, as well as in search and filing programs. It is advisable to search across both old and new classes when evaluating potential conflicts. We note as well that while most jurisdictions follow the most recent edition of Nice Classification guidelines, certain jurisdictions have adopted earlier editions. This should be checked when filing internationally. With respect to filing applications under the Madrid system, the goods and services manager in eMadrid was updated on January 1 and can be found here.
DATA PRIVACY
Privacy Issues We Are Watching in 2026 (Hint: Don’t Get Too Comfortable . . .)
Our data privacy group rang in the New Year by digesting a holiday feast of amendments and rulemaking for existing state privacy laws, greeting three new state comprehensive privacy laws, and addressing a growing list of issues that enlarge the scope of privacy-related obligations for businesses across a many industries, sizes, and jurisdictions. A small sample of the many items we are tracking in 2026 includes:
State privacy law amendments and regulations
While no new comprehensive privacy laws were introduced in 2025, several states’ laws were amended, became subject to newly issued regulations, or both. Among the most important:
New California Rules. The California Privacy Protection Agency (CPPA), now also called CalPrivacy, finalized extensive changes to the rules governing the California Consumer Privacy Act (CCPA), most notably regarding automated decision-making technologies (ADMT), compulsory risk assessments, and cybersecurity audits. A key compliance call to action is the new rule that requires covered companies to conduct risk assessments of potential harm to consumers from processing their personal information. Companies must complete risk assessments, as detailed in the new regulations, before starting any processing activities that present significant risks to consumers. For processing that occurs in 2026 and 2027, companies must submit their written risk assessments to CalPrivacy by April 1, 2028, though processing may proceed prior to any submissions.
Opt-Out Signals. California’s “Opt Me Out Act,” which requires browser developers to include a simple, built-in process in their browsers for consumers to opt out of the selling or sharing of their personal information. Any business that owns or operates a website and does business in California must be ready to recognize and honor such browsers’ opt-out signals by the effective date of January 1, 2027.
Connecticut Amendments. The Connecticut Data Privacy Act now applies to all businesses who process annually 35,000 consumers’ data, down from 100,000. The CDPA automatically applies if sensitive data (now more broadly defined) is processed.
Other State Law Changes. Additional states have amended their privacy laws, including Colorado (strengthening protections for minors and addressing biometric data) and Oregon (banning sale of any precise geolocation data, harmonizing processing of sensitive children’s data with federal COPPA rules, and prohibiting knowing sale of personal data of consumers under 16 years old, even with consent). In New Jersey, final rules are pending following the closing of the public comment period on draft regulations for New Jersey’s Data Privacy Act.
Three new states’ privacy laws
The comprehensive data privacy laws of Kentucky, Indiana, and Rhode Island became effective on January 1, 2026, bringing three more states into the fold of privacy regulation and enforcement and creating new compliance obligations for companies covered by these laws. The Kentucky Consumer Data Privacy Act (KCDPA) and Indiana Consumer Data Protection Act (ICDPA), each with a personal data processing threshold of 100,000 residents, resemble the frameworks of other state privacy laws. Wasting no time, the Kentucky Attorney General’s Office filed a lawsuit against an AI chatbot company for violations, only eight days after the KCDPA went into effect.
The Rhode Island Data Transparency and Privacy Protection Act (RIDTPPA) mostly follows a structure similar to other laws but has a lower threshold of 35,000 residents and requires companies that sell personal data to identify the buyers, even if no consumer requests this information.
State privacy enforcement
Throughout 2025, state regulators brought enforcement actions and signaled new investigations. They also sent warning letters to companies concerning non-compliant privacy notices, misconfigured tracking technologies and consent management tools, failure to honor Global Privacy Control signals or consumer opt-out rights, and omission-of-data-protection agreements with third parties. With nineteen comprehensive privacy laws now in effect, and a ten-state Consortium of Privacy Regulators, we anticipate more expansion in regulatory inquiries, investigative sweeps, and enforcement actions.
CIPA and online tracking technologies
Last year’s deluge of lawsuits and demand letters initiated by plaintiffs’ firms and pro se claimants under the California Invasion of Privacy Act (CIPA), and in some cases the federal Electronic Communications Privacy Act (ECPA) or similar state statutes, shows no sign of abating as we move into the new year. CIPA claims broadly target tracking technologies (such as cookies and pixels), session replay tools, chatbots, search bars, and other standard internet tools. While the Ninth Circuit dismissed several CIPA-based actions in 2025 and some lower courts acknowledged that invoking CIPA in the current spate of claims unduly contorts the original intent of the1967 wiretapping and eavesdropping statute, courts remain mixed in how they address plaintiffs’ theories, with many cases moving past motions to dismiss in the lower courts.
Proposed California Senate Bill 690, which would have created a “commercial business purpose” exemption from CIPA and thereby foreclose liability for installing website tracking technologies, unanimously passed in the California Senate but later stalled in the assembly. Senate Bill 690 will now proceed as a two-year bill and could be reconsidered this year. Should it pass this time around, the bill would likely become effective in 2027 with no retroactive application. So plaintiffs are incentivized to initiate as many actions or arbitrations as possible in 2026, while the law remains unchanged.
Takeaways: Still more on the horizon! The universe of privacy law continues to expand rapidly, and at times unpredictably, thus making a “trends to watch” list by its nature incomplete and subject to change. Topics we are monitoring that are not covered above include children’s privacy, the interplay between AI and privacy laws, the Department of Justice’s Bulk Transfer Rule, age-appropriate design codes, app store accountability acts, the EU’s Digital Omnibus, India’s Digital Personal Data Protection Act, data broker enforcement, state “mini-TCPA” laws, and other developments that merit attention. We will report on these and other relevant topics as the year unfolds.
INTERNATIONAL
Argentina – Significant changes to the Argentina Trademark System
Last month, Argentina’s National Institute of Industrial Property (INPI) introduced substantive and procedural changes to its trademark law by way of Resolution 583/2025. Effective December 11, 2025, INPI will limit its substantive examination of trademark applications to the following absolute grounds for refusal, namely:
- inherent distinctiveness,
- national and foreign appellations of origin,
- marks that are identical to previously filed or registered trademarks covering overlapping goods and/or services, and
- grounds related to public policy.
INPI will no longer examine trademark applications on the following absolute grounds of refusal as well as relative grounds for refusal, such as:
- marks that are similar to previously filed or registered marks,
- marks that are misleading with respect to the nature, properties, merit, quality, manufacturing techniques, function, origin, price, or other characteristics of the covered goods and/or services,
- activity designations traditionally used to identify products, such as company names or other language descriptive of business activity, and
- Names, pseudonyms, or depictions of third parties without their consent.
Effective March 1, 2026, trademark applications will undergo formal examination before publication. An application that passes formal examination will be published for opposition for a period of thirty (30) days. Applications that are not opposed within thirty days will automatically mature to registration. The stated goals of these changes are to streamline and simplify the registration procedure by reducing delays resulting from Office Actions and to align the Argentine system with international practices including the system in force in the European Union.
Takeaways: Since INPI will no longer examine applications on relative grounds for refusal – including similarity to prior-filed or registered marks – it is critical that trademark owners establish robust monitoring practices to ensure that they can detect third-party filings that may conflict with an owner’s prior rights and oppose such filings in a timely manner. Furthermore, it is unclear how INPI will handle trademark applications that were preliminarily refused on relative grounds prior to December 11, 2025 but remain pending. Resolution 583/2025 states that the new examination procedures will be applied to all pending applications irrespective of their status. Therefore, Office Actions preliminarily refusing registration of pending applications on relative grounds should theoretically be rescinded and the applications published for opposition (assuming no applicable absolute grounds of refusal were raised). Notwithstanding the foregoing, it is recommended that owners of pending applications that were refused on relative grounds submit a response to INPI before any deadline to ensure that their applications do not inadvertently lapse while the new examination procedures take effect.
China – Stricter evidentiary requirements for both filing and defending against non-use cancellation
On May 26, 2025, the China National Intellectual Property Administration (CNIPA) issued Guidelines for the Trial of Three-Year Non-Use Trademark Cancellation, the purpose of which was to address abuses of the non-use cancellation process. Since then, at the filing stage, petitioners have been required to submit substantially more evidence based on investigation into, inter alia, the registrant’s business, its websites and social media accounts, and e-commerce platforms. This e-commerce evidence includes detailed searches on no fewer than three platforms (with five consecutive pages of search results per platform). In circumstances where the registrant successfully defended a non-use action within the past three years, a subsequent non-use attack will be subject to heightened scrutiny. In such a case, the petitioner will be required to provide further probative evidence that the mark has not been used, which could include mandatory on-site investigation. Accordingly, should the petitioner not succeed in its first attempt to cancel a mark for non-use, it is advisable to file a review of refusal, rather than attempt to file a new non-use cancellation action within the following three years. Anonymous non-use actions are still available to petitioners, but they too must meet the higher evidentiary threshold.
To successfully defend a non-use action, trademark owners should continue to maintain evidence of ongoing use, including documentary evidence of sales, VAT invoices, advertising materials (including uses on social media platforms reaching China), packaging, and local trade fair records.
Takeaways: The substantially higher threshold for filing non-use actions in China should curb abuses by pirates and others who wish to secure leverage against legitimate rights holders for commercial benefit. Yet it substantially burdens legitimate applicants seeking to clear the register’s “dead wood” or forge coexistence agreements, especially since the CNIPA has become less willing to accept letters of consent. Legitimate non-use petitioners should therefore be prepared to undertake more extensive evidentiary investigation prior to filing than was previously the practice.
European Union – A work of art? Landmark CJEU case clarifies scope of EU copyright protection
On December 4, 2025, the Court of Justice of the European Union (CJEU) issued a landmark decision in Mio v. Asplund (Swedish case C‑580/23) and USM v. Konektra (German case C‑795/23). These are joint cases addressing copyright and design protection for works of applied art, i.e., the aesthetical configuration (shape or appearance) of utilitarian objects. Specifically, the combined cases involved disputes over iconic furniture designs: Mio’s alleged infringement of Asplund’s Palais Royal table design and Konektra GmbH’s alleged infringement of USM U. Schärer Söhne AG’s modular furniture system. In its decision, the CJEU held that, under EU law, works of applied art can be subject to both copyright and design protection. As for copyright protection, which is the focus of the decision, works of applied art are subject to the same originality standard as other copyrightable works. A work of applied art must be “original” or “unique,” meaning that it demonstrates the personality of the author by serving as an expression of free and creative choices. Under this standard, choices dictated by constraints, such as technical, ergonomic, or safety standards or conventions, are not considered free and creative and do not serve as evidence of the author’s personality. Similarly, if a work of applied art is a highly similar or recognizable reproduction of a prior work, such resemblances are relevant indications of low levels of, or even the absence of, the originality necessary to support a copyright infringement claim. However, if a work is a variant or derivative of an existing work, it may still be eligible for copyright protection if it expresses free and creative choices even while drawing upon certain elements of the prior work.
In rendering its decision, the CJEU refused to assign more stringent standards to applied works of art, clarifying that EU copyright law operates independently from EU design law and that applied works of art fall within the scope of copyright protection notwithstanding their utilitarian nature. The implication of this seminal decision is that copyright infringement is determined based on whether the original or creative components of a work have been recognizably reproduced rather than whether two works are similar in appearance or function. As such, the decision underscores the broad applicability of copyright protection for product designs in the EU.
Takeaways: Given that the CJEU’s decision reinforces the broad reach of copyright protection in the EU, rightsholders in design-driven industries, such as art, fashion, and consumer products, should consider the strategic benefits of securing both copyright and design protections as a way of obtaining, protecting, and enforcing their rights. Similarly, rightsholders should take steps to defend against potential third-party copyright infringement claims by (i) carefully documenting the free and creative choices made throughout the creative process and (ii) ensuring they can show that the core creative features of their products are original.
Nepal – Important update on pending trademark applications – deadline sensitive
Pursuant to a December 1, 2025 notice issued by the DOI, applicants who had filed applications but not yet submitted supporting documentation must re-submit their applications along with supporting documents to the DOI no later than February 28, 2026. Any applications pending for over seven years will be cancelled automatically, absent timely filing of this documentation.
Those whose applications were already approved and published in the Industrial Property Bulletin, and were not opposed within the opposition period, must now apply to the DOI to secure registration. The deadline for submission is May 31, 2026.
Takeaway: To avoid rejection or abandonment, owners of pending or published applications in Nepal are advised to meet these important deadlines, which cannot be extended. The recommended steps should be taken as soon as possible. We are available to assist applicants in any way needed.
United Kingdom – Post-Brexit transition ended January 1, 2026
Use of a mark in the European Union no longer counts as use in the United Kingdom and vice versa. United Kingdom marks that were created by cloning European Union rights are now vulnerable to non-use cancellation absent genuine use in the United Kingdom. While this may seem like old news, the time has now come for trademark owners to review both their UK and EU portfolios for actual use, including making sure to preserve evidence of use on an ongoing and accessible basis.
Takeaway: Rightsholders should promptly take stock of their UK and EU portfolios and user history. In some cases, it may be prudent to consider refiling if (i) use in either jurisdiction (UK or EU) may not protect against non-use cancellation or (ii) there has been a change in format. Do take care, though, to avoid an approach that could leave the refiled applications vulnerable to challenge for evergreening.
Kazakhstan – New AI law and updates to Law on Trade Marks and Civil Code
AI Law: In an effort to forge a balance between copyright law and technological innovation, and to conform to international standards, Kazakhstan’s new law includes: (1) a regulatory framework based on various levels of risk, (2) prohibition on certain uses based largely on privacy/ethical concerns, (3) definitions of basic terms associated with AI (e.g., AI system, AI Model) and (4) systems for assuring best practices and transparency, including mandatory labeling for AI-generated services and materials. While the law addresses the scope of copyright protection in the AI context, it leaves establishment of enforcement guidelines to the courts, legislators, and rightsholders.
Law on Trademarks and Civil Code: The amendments include options for accelerated preliminary and substantive examination, a two-month opposition period (previously one month), and an option to suspend examination based on a pending lawsuit (previously only available based on a pending opposition). In addition, it is now possible for any party (not only the opposer) to postpone Board of Appeals hearings if necessary. Definitions of certain terms relating to IP in the Civil Code have now been amended to take into account technological advances (e.g., the list of protectable rights includes works of decorative and applied art and software).
Takeaways: Through this recent modernization of its IP laws, Kazakhstan has provided stakeholders in the AI, copyright, and trademark spaces further guidance for achieving a balance between their respective rights. Stakeholders active in, or planning to enter, this jurisdiction are advised to familiarize themselves with the obligations and opportunities this new legislation provides.
Vietnam – Changes to the Law on Intellectual Property
A December 2025 law amending several articles of the Law on Intellectual Property will take effect April 1, 2026. Especially significant is the addition of a new Article providing for AI and data mining exceptions to use of material protected by copyright and related rights concerning scientific research, testing, and training AI systems. The Law specifically assigns to the Government the task of drafting related regulations. Among other changes is a new Article recognizing IP rights as financial assets worthy of broader enforcement, provisions clarifying the scope of copyrightable material, a broader definition of industrial design, and a provision for imposition of increased (including proactive) obligations on ISPs to protect against IP infringement. The Law also provides for increased civil remedies and increased damages, including raising the statutory cap in some cases from 500 million to one billion VND.
Takeaway: Among the recent amendments to IP law in Vietnam are important provisions for addressing issues arising in the AI environment, increased enforcement mechanisms for rightsholders, and stricter obligations on ISPs to guard against use of protected materials. Rights holders, AI enterprises, and others should take these new updates into account when active in, or considering entry into, Vietnam. We are tracking the evolving legislative, regulatory, and judicial action that will follow.
Zambia – New trademark law – Replacing the 1958 Trademarks Act
The new Act, which came into force on December 26, 2025, now includes provisions for filing of multiclass applications, service marks, collective and certification marks, as well as protection for well-known marks, and introduces a broader definition of trademarks to include non-traditional marks. Rightsholders can also look forward to more robust enforcement and clarity regarding grounds for opposition, cancellation, and infringement. And, as in certain other “British law” jurisdictions, the law introduces a so-called “groundless threats” provision for the purpose of challenging overzealous infringement allegations. Importantly, the new Act provides for designating Zambia for protection under the Madrid Protocol. While this is a welcome development, implementing regulations are not yet in place. Accordingly, it may take time before we have clarity on how Zambia will implement the handling of Madrid applications and other provisions in the new Act.
Takeaway: Rightsholders who are, or expect to be, active in this jurisdiction can look forward to more clarity and opportunities for protection and enforcement of their valuable trademark rights in Zambia, including most importantly the ability to register marks in the service mark classes. This said, regulations have not yet been promulgated, let alone implemented, and it will be important to track how these long-anticipated changes will evolve in practice. We will be closely watching this space.