Mark it: 7 big trademark, copyright, and advertising trends we are watching for 2026

From trademark prosecution reforms and copyright litigation milestones to tightening advertising substantiation standards, evolving trade secret risks, and the ongoing battle over product design “dupes,” 2026 presents a mix of regulatory shifts, enforcement developments, and technology-driven challenges that will reshape how companies protect and leverage their intellectual property (IP).

Here are seven trends we are watching closely as the year unfolds.

1. Substantiation standards tighten for performance, health, and “artificial intelligence (AI)-powered” claims

By Melissa A. Reinckens and Susan N. Acquista (both San Diego)

In 2026, advertising disputes will likely center on whether advertisers have “competent and reliable” support for express and implied claims, with three themes drawing particular attention:

1. Performance and superiority claims are under scrutiny, especially where advertisers rely on internal analytics, model-based testing, or novel methodologies. Challengers before the National Advertising Division and Lanham Act plaintiffs are expected to probe test protocols, sample sizes, environmental conditions, and statistical significance, as well as whether study populations reflect the real-world use cases suggested by the ad.
   
   
2. Health-related and “clinically proven” claims remain high-risk across supplements, beauty, and functional foods. Disputes increasingly turn on the quality hierarchy of evidence, the alignment between endpoints and advertised benefits, and the net impression created by qualifiers.
   
   
3. Claims like “AI-powered,” “autonomous,” and “smart” are being held to the same rigorous standards as traditional performance claims. Plaintiffs and competitors are challenging whether machine-learning features are material to outcomes, and whether training data, validation, and error rates are adequately described.

Advertisers may expect that substantiation will be tested for both accuracy and alignment with the consumer takeaway conveyed by creative, headlines, and testimonials.

2. The “dupe wars” continue

By Tamar Y. Duvdevani (New York)

Building on the 2025 trend, rights holders are expected to continue asserting “dupe” claims against other market players for trade dress and design patent claims about product and packaging design. Ongoing litigation in consumer products, cosmetics, and apparel will continue to shape where courts draw the line between non-confusing uses of functional or aesthetic design and overt and successful attempts to usurp a brand’s goodwill. A recurring theme in many of these cases is debate over the significance of consumer awareness and intentional purchase of a copycat, less expensive version.

3. AI’s impact on trade secret protection and litigation strategies

By Paul Steadman (Chicago)

The influx of AI technology is changing the business of trade secret protection and litigation at an unprecedented rate. AI adds complexity to keeping trade secrets confidential, as competitors can use public data (e.g., published patent applications, regulatory filings, data, and even redacted materials) to predict other companies’ trade secrets with alarming accuracy. This is shifting the patent-trade secret calculus – companies must weigh whether to file patent applications given the relatively lower barrier to discovering inventions that were kept secret.

On the litigation front, AI often complicates proving the existence of a trade secret. Employees who used public AI systems to create inventions may have inadvertently disclosed the prompts and responses through a public system, thereby destroying secrecy. This raises new questions and disputes as litigants contest disclosure of years-old prompts and responses. Companies and practitioners are encouraged to consider the implications of AI on trade secret strategy.

4. United States Patent and Trademark Office (USPTO) accelerates trademark prosecution amid rising enforcement stakes

By Keith Medansky (Chicago)

Trademark prosecution is expected to accelerate, but will require increased attention to the identification of goods and filing procedures. Effective January 1, 2026, updates to the Nice Classification of goods and services in trademark applications take effect to modernize language and meet treaty requirements. For example, Class 9 now covers digital and virtual products.

Applicants are encouraged to be mindful of these changes when filing applications to avoid office actions and delays. The USPTO aims to issue the first office action within 4.5 months and complete total processing within 9 months of FY 2028. To handle demand, the USPTO plans to hire more examiners in 2026 and deploy AI to identify suspicious applications. The USPTO has stated its focus on protecting the trademark registration system from fraud and abuse, particularly from filers using “boiler-room-style” filing mills, spoofed identities, and fabricated evidence of use, reporting that it has terminated thousands of fraudulent trademark applications and barred practitioners who engaged in misconduct.

5. AI and copyright laws: Litigation and licensing trends to watch

By Rachel Fertig (Washington, DC)

AI-related litigation and licensing regarding the use of copyrighted content increased in 2025. Notably, in June 2025, two summary judgment decisions held that using books to train general-purpose generative AI models constituted fair use where no evidence of infringing outputs was shown. In contrast, a third decision held that it was not fair use to use non-fiction content to train a directly competitive non-generative AI model. The increase in litigation and licensing of copyrighted content was fueled in part by a large class action settlement.

The US Copyright Office’s May 2025 report stated that “creating and deploying a generative AI system using copyright-protected material involves multiple acts that, absent a license or other defense, may infringe one or more [copyright] rights.” Several district courts have allowed claims of direct and secondary copyright infringement liability to survive Rule 12 motions filed by AI developers regarding AI outputs.

2026 is expected to bring a larger body of law in this area, including several anticipated summary judgment rulings and the first appellate decisions regarding the training and outputs of generative AI models.

6. California enforces regulations on daily fantasy sports, sweepstakes casinos, and prediction markets

By Benjamin R. Mulcahy (Los Angeles) and James Stewart (Washington, DC)

Although unlicensed gambling is illegal in the US, activities offering the opportunity to win money based on uncertain outcomes, such as contests and sweepstakes, fantasy sports, and prediction markets, have proliferated. Historically, when properly structured and administered, these activities were associated with low legal risk. Recent legislative and enforcement activity in California and elsewhere, however, has changed that assessment.

California Attorney General Rob Bonta recently issued an opinion concluding that California law prohibits daily fantasy sports games that are open to players who are physically located within California, regardless of where the operators and associated technology are located.

Second, a new California law (AB 831, also known as the “Anti-Sweepstakes Bill”) prohibits sweepstakes casinos, broadens prohibited gaming activity in California, and extends legal liability to entities (e.g., financial institutions, payment processors, and media companies) that knowingly and willfully support the illegal activity. Similar laws have recently taken effect in Connecticut, New Jersey, and Montana.

Operators, digital platforms, financial institutions, media companies, and other entities involved in offering, facilitating, or promoting these activities are encouraged to reassess their compliance in light of these new laws.

7. Federal circuit split alters pleading standards for trade secret claims

By Leon Medzhibovsky (New York)

The timing of trade secret identification in trade secret litigation has become a fiercely contested and often unsettled issue in federal litigation. In 2025, the US Court of Appeals for the Fourth Circuit and Ninth Circuit issued appellate decisions creating a circuit split over when a plaintiff must specifically define their alleged trade secrets to bring a claim under the Defend Trade Secrets Act. This split shapes the viability of claims and impacts the entire procedural trajectory of trade secret cases, from initial pleadings through discovery and trial.

The lack of uniformity in the timing of trade secret identification has significant consequences for litigants. Varying requirements may affect the viability of claims, the scope of discovery, procedural strategy, and the outcome of litigation.

DLA Piper’s lawyers practice at the vanguard of trademark, copyright, trade secret, and broader IP law, handling notable matters in key jurisdictions. We translate that advantage into pragmatic and effective commercial guidance and solutions.

Learn more

For more information about these swiftly evolving areas of law and how they affect your business, please contact Tamar Y. Duvdevani (New York), Partner and US Chair, Trademark, Copyright, and Media.