US Intellectual Property Trends and Strategy Going into 2026 

2025 was a a really interesting year in intellectual property in the US. We’ve seen novel trademark registrations designed to reduce the rising prevalence of dupes, continuing arguments over registration of the f-word, and rumors of major changes to how the US charges for patents. There have also been some interesting happenings around the world in IP.  

All of these headlines have a legal story behind them that could impact your intellectual property strategy going into 2026. Here’s what you should know:  

Major IP Developments and Trends in 2025 

A Mega Year for ‘Dupe’ Litigation 

We saw a number of high-profile IP cases registered in 2025 in an effort to counteract the rising number of ‘dupes’ – look-alike products that closely mimic well-known products.  

Some of the higher profile cases include: 

• Lululemon filed a lawsuit against Costco in June, accusing the retailer of violating its trade dress, trademark, and design patents by selling dupes. The case asserts that Costco is unlawfully capitalizing on the distinctive design elements and overall consumer recognition of Lululemon products. 
• The J.M. Smucker Co. filed a new federal lawsuit against Trader Joe’s in October 2025, alleging the grocer’s new crustless sandwiches are an “obvious copycat” that infringes on the distinctive trade dress of the Uncrustables brand. Smucker’s claims that the round, crimped-edge sandwiches and the similar blue-toned packaging are deliberately designed to confuse consumers and trade off the Uncrustables’ $1 billion success. 
• Stanley’s parent company, PMI, filed a lawsuit earlier this month against discount-retailer Five Below for design patent and trade dress infringement over low-cost “dupe” tumblers. The lawsuits argue that the ‘dupe’ products intentionally mimic the iconic overall look, handle shape, and lid structure of the viral Quencher H2.0 cup to create consumer confusion and dilute the Stanley brand. 

From the awareness around rising volumes of dupes came discourse on how to protect your brand from copycat products – and we saw some interesting strategies deployed in 2025 too.  

Legal counsel will still often suggest filing for intellectual property protections prior to the product hitting the market. But, in the event this didn’t happen – or if dupe products are still entering the market, we’ve also seen some novel and interesting approaches beyond cease and desist letters and litigation:  

• Lululemon has registered a trademark for ‘Lululemon Dupe’ with the USPTO. The trademark covers use of the word in advertising, marketing, and retail – essentially giving Lululemon the right to restrict and/or take action against companies using the phrase. This could protect the brand from those using the hashtag #lululemondupe to advertise on social media (provided the use creates a likelihood of confusion). Though we suspect that alternative hashtags may follow, so this could become a game of whack-a-mole.  
• Advanced AI tools are aiding intellectual property strategy by automating the discovery and evidence-gathering process. These tools use sophisticated image recognition and Natural Language Processing (NLP) to scan global e-commerce and social media and flag counterfeits. At this point, the tools can also start to build evidence files required for intellectual property enforcement. Legal teams are also using these tools to predict emerging infringement hotspots and allocate resources appropriately. 

Implications From The Ongoing Trademark F-Word Saga 

Designer Erik Brunetti has been litigating his failed attempts to trademark the word ‘Fuck’ or similar words, like Fuct, since 2017. During that time, we’ve seen the courts strike down the statutory bar on registering ‘immoral or scandalous’ marks, but Mr. Brunetti has yet to succeed in his attempts to trademark the f-word.  

In his most recent attempt, his rejected trademark bid was overturned by the US Court of Appeals for the Federal Circuit – which means the USPTO will need to re-review the application and decide it again.  

While the content is clearly clickbait-worthy, there’s actually a really interesting legal element driving this litigation. The US Court of Appeals for the Federal Court has asked the USPTO to clearly define when a commonly used word like the f-word, or say — Apple – is registrable, and when it is not.  

The decision notes:  

“The Board’s reasoning sounds in fact very much as though it has taken an “I know it when I see it” approach to failure-to-function refusals. Such an approach is inconsistent with the Board’s mandate to engage in reasoned decision making under the APA.” 

“We conclude the Board failed to provide sufficient precision in its rationale for why some commonplace words can serve as a mark, but others, such as FUCK, cannot…. Without a clearer explanation, we are unable to determine whether substantial evidence supports the Board’s determination that the applied-for mark fails to function as a source identifier. Accordingly, remand is required”. 

In other words, we expect that the USPTO will need to provide clearer guidance on this topic when it reconsiders Mr Brunetti’s application – and the decision may be extremely helpful for companies looking to register commonplace words and slogans in the future.  

Licensing Remains a Hotbed for Litigation in the US 

Earlier this year, we covered IP licensing trends in the US – including a significant volume of litigation in the licensing landscape. This has continued throughout 2025, and it’s widely expected to continue for the foreseeable future. 

In fact, shortly after we published our earlier piece, two US court decisions made it easier for patent trolls to file litigation in the US. As a reminder: A patent troll, also known as a Patent Assertion Entity (PAE), is a company that acquires patents to enforce patent rights through aggressive litigation or licensing demands rather than to develop products.  

We won’t go into the details here, but these cases relaxed the requirements for an entity to file a claim in the US. So, it’s possible (likely even) that we will see more litigation in the licensing arena going forward.  

USPTO Reportedly Considering Value-Based Patent System 

Earlier this year, the Wall Street Journal reported that the USPTO is considering implementing a ‘value-based’ patent system that would charge patent-holders a fee of 1-5% of their patent value. The suggestion has received widespread backlash almost universally, so we aren’t sure at this point whether it will proceed – as a result, we won’t dig too far into it.  

We will say that any changes in this direction could require businesses to balance the cost of the increased fees from USPTO against the benefits of patent protection. In the event these changes do come to pass, it would be worth consulting IP counsel to discuss your options to reduce overall intellectual property costs. 

Key Takeaways from International Intellectual Property 

Australia’s Intellectual Property Report 

Norton Rose Fulbright’s Australian Intellectual Property Report (released October 2025)  

note that the US is dominant in patent filings for AI and technology, and pharmaceuticals and biotechnologies.  It also went on to provide an interesting perspective on the value proposition for IP strategy:  

• SMEs that registered their IP are 16% more likely to experience high employment growth than those that don’t, meanwhile registered IP can increase the valuation of startups by 20%.  
• Registering trademarks can promote business expansion and investment in innovation, while reducing expenses associated with marketing new products through reduced costs and friction associated with customer search queries.  
• An 8% increase in revenue for product launches backed by trademark rights.  

This data reinforces the value in US businesses viewing IP registration as a key growth and valuation driver, not just a defensive ‘cost of doing business’. 

Other noteworthy global trends and happenings in IP include:  

• The global intellectual property landscape is becoming more complicated too, with more IP litigation happening in China in early 2025 (up 36.15% from the same period in 2024). 
• Korea established a Ministry of Intellectual Property on October 1, 2025. It hopes to elevate intellectual property (IP) governance and the role of IP to a strategic national level, according to the World Intellectual Property Organization. 
• There are at least 60 AI-related copyright infringement lawsuits in progress globally, showing that this remains an area of law with a great deal of uncertainty and rife with risk for developers. One highly anticipated case, Getty Images v. Stability AI, was recently decided in the UK – With the ruling suggesting that, under current UK law, if an AI model does not physically store or reproduce the training data, the model itself is not an illegal item. There’s a parallel lawsuit in the US, which may have judges consider what ‘Fair Use’ in the context of artificial intelligence training actually means, which is a larger issue many other courts have so far sidestepped. 

Action Items for 2026 

Register Strategic and Non-Traditional Marks  

For those companies selling consumer products, it’s a tricky time to be in the space. Consumers are showing price sensitivities that haven’t been seen in recent years, and dupe products are growing in popularity and volume.  

Novel thinking in IP strategy, such as registration of non-traditional marks – like color palettes or dupe-related language – could help to protect your brand from copycats going into 2026.  

Reconsider Your Current Tech Stack 

Technologies designed to streamline and improve IP registration and enforcement are becoming more available. If you haven’t recently considered emerging technologies and how they may help you protect your brand, it’s time to add an (at least) annual audit to your processes.  

Align Your Legal Strategy with the Current Landscape 

One key strategic takeaway from the trends above is that what worked in past years may not be the best strategy going forward. Your IP strategy should evolve with the global regulatory and economic environment, as well as with consumer purchasing and decision-making trends. 

Working with a law firm that providers sharp insights that align with business goals is a step in the right direction here. It’s helpful to work with legal counsel who provide the expertise you don’t have, as opposed to simply outsourcing tasks (like registration) to them without broader context.  

If you’d like to discuss your IP strategy for 2026 with us, reach out. Our IP counsel are available to help.  

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