COPYRIGHT LAW

When was the last time you checked what’s being sold online under your brand name? With Black Friday on November 27 and Cyber Monday on November 30, now is a good time to look. Last year, Cyber Week (Thanksgiving through Cyber Monday) brought in $44.2 billion in U.S. online sales, and Cyber Monday set a single-day record at $14.25 billion, according to Adobe. Counterfeit products online are part of the picture too. In fiscal year 2025, U.S. Customs and Border Protection (CBP) reported seizing nearly 79 million counterfeit items, which would have carried a retail value of over $7.3 billion if genuine. ( source , digitalcommerce , hstoday.us ) Why Counterfeits Surge During the Holidays Holiday shoppers are looking for deals and buying quickly. Counterfeiters take advantage of that urgency. UL Standards & Engagement’s 2024 Holiday Safety Guide found that 40% of holiday shoppers had been fooled into buying a counterfeit at least once. That matters to you as a brand owner, because CBP says counterfeits can pose health, safety, and economic risks and hurt U.S. businesses. What Online Trademark Infringement Looks Like It can include: Counterfeit listings on online marketplaces using your name and logo Look-alike websites that borrow your trademark. One security firm found a network of 198 fake sites illegally using famous brands’ trademarks ahead of a Black Friday sale. Social media posts promoting knockoffs of your products Under the Lanham Act, a counterfeit mark is identical or substantially indistinguishable from a registered trademark (15 U.S.C. § 1127). ( winston ) That word, registered , matters. Why Trademark Registration Matters Using your brand name for years doesn't automatically give you access to every enforcement tool. Several important protections require federal registration: Amazon Brand Registry: Amazon’s U.S. eligibility page calls for an active registered trademark, or a pending application filed through its IP Accelerator program. Amazon also asks you to show the mark on your products or packaging. Requirements can vary by Amazon store, so check the current rules before you enroll. CBP e-Recordation: This puts your mark on file with Customs so the agency can detain and seize counterfeit imports. It requires a mark registered on the Principal Register, so pending applications don’t qualify. The fee is $190 per class of goods, and renewal is $80 per previously recorded class. Statutory damages: In a counterfeiting case, you can elect set damages instead of proving your actual losses. The range is $1,000 to $200,000 per counterfeit mark per type of goods or services, and up to $2,000,000 if the use was willful (15 U.S.C. § 1117(c)). ( govinfo , govinfo ) A registration filed today won't protect you this Black Friday, but it can help protect your brand in the years ahead. Isn't the Marketplace Responsible? Not entirely . In Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010) , the court found that general knowledge of counterfeits on a platform wasn't enough to hold eBay liable. Specific knowledge of infringing listings mattered. ( arnoldporter ) In practice, brand owners still need to identify and report counterfeit listings. The INFORM Consumers Act, effective since June 2023, also requires marketplaces to collect and verify information from certain high-volume third-party sellers, making it harder for counterfeiters to operate anonymously. ( ftc ) Your Pre-Black Friday Checklist Here's what to do this month: Review your registrations. Make sure they cover your products and brand assets. Search online marketplaces. Check social media and third-party listings, too. Consider CBP recordation. Especially if your products are manufactured or shipped overseas. Identify authorized sellers. Make it easy for customers to find genuine products. Document suspicious listings. Save dated screenshots, seller information, and URLs. How Rosenthal IP Law Can Help Trademark clearance, registration, and strategy are at the heart of what I do. For enforcement matters such as marketplace takedowns and ongoing monitoring, I coordinate with trusted colleagues to connect clients with the right specialists. If you'd like to know where your brand stands before the holiday rush, contact Rosenthal IP Law to review your trademark portfolio and discuss an online brand protection plan. Protecting your brand starts with knowing what you own and making sure it's registered.

“ I made my logo with AI in about thirty seconds. Can I actually protect it? ” I hear some version of this more and more. The short answer is probably yes. The reason why says a lot about the difference between trademark and copyright. Trademark Doesn’t Care Who (or What) Made It In our post on AI and copyright , we covered Thaler v. Perlmutter, the case confirming that copyright requires human authorship. Content generated without meaningful human input generally can’t be copyrighted. Trademark asks a different question. It isn’t about how a mark was created. It’s about what the mark does in the marketplace: whether customers see it and associate it with your business. The USPTO doesn’t ask whether a person, a designer, or an AI tool came up with your AI-generated brand name or logo. It asks three things: Does it identify your business as the source of your goods or services? Is it distinctive, rather than generic or merely descriptive? Does it avoid a likelihood of confusion with someone else’s existing mark? If the answers are yes, an AI logo trademark application stands on the same footing as any other. Where AI Logos Run Into Trouble The problem usually isn’t the AI. It’s what AI tools tend to produce. They draw on enormous datasets, so they often generate designs that resemble existing marks or lean on generic industry imagery. Type “cloud” or “data” into a logo generator and you’ll see the same icons and circuit patterns again and again. The tool isn’t checking the USPTO database before it hands you a design. That makes a clearance search more important when a logo came from AI, not less. A “unique” logo that turns out to be confusingly similar to a registered mark can mean a refused application, or worse, a cease-and-desist letter after you’ve printed the signage. What You’ll Need to Show A few practical points if you want to trademark an AI-generated logo: Real use in commerce. The USPTO expects to see the mark actually in use, such as on packaging, a live website, or advertising. AI mockups or “coming soon” pages are not sufficient. A person or legal entity as owner. Only people and registered businesses can own a trademark, never the AI tool. Distinctiveness. A generic name paired with a generic icon gives you very little legal strength, however polished it looks. The Copyright Wrinkle Here’s where the two areas of law collide. Even after your AI-generated logo is trademarked, the artwork itself may not be copyrightable, per the same human-authorship rule from Thaler. Trademark stops others from using your mark to identify competing goods or services, but it doesn’t automatically stop someone from copying the design in every context. If a human designer meaningfully edits or builds on the AI output, that human contribution may carry its own copyright protection on top of the trademark. That’s a good reason to have a person put real creative work into the final version rather than using the raw AI output as-is. Before You Build a Brand Around It If you’ve generated a logo or name with AI and you’re about to spend real money on signage, packaging, and marketing, the order of operations matters: clearance search first, document your actual use, and then file. Skipping the search is the most common way an AI-generated brand identity turns into an expensive rebrand a year later. Whether you’re protecting a new logo or sorting out trademark AI-generated content more broadly, brand protection starts before you launch, not after someone else files first. Contact Rosenthal IP Law today to schedule a consultation on trademarking your AI-generated logo or brand name before the signage goes up.