Bad Patents, Patent Trolls, and the PR Campaign Created to Excuse Infringement

There’s a curious double standard in the way we talk about intellectual property (IP) in America. When someone copies a copyrighted work without permission, we recognize that the creator has rights. Copyright infringement can even carry criminal penalties. When someone steals another person’s property, we call it theft, and criminal penalties can follow. But when a company uses someone else’s patented invention without permission, the patent owner who tries to stop it is often portrayed as the villain.

Beyond Takedowns: Disrupting the Business of Counterfeiting

A brand protection program can remove thousands of infringing listings and still leave the business behind them largely intact. Sellers return under different accounts, storefronts multiply, and counterfeit goods continue reaching customers. AI compounds the problem: the same technology that helps rights holders detect infringement can help counterfeiters generate replacement listings and create new accounts more quickly. Such is the neverending game of whack-a-mole confronting brands.

Apparel and Footwear Association Urges USTR to Add U.S. Platforms to 2026 Notorious Markets Report

The American Apparel & Footwear Association (AAFA) submitted comments to the Office of the United States Trade Representative (USTR) on October 7, recommending that USTR include Facebook, Instagram, Alibaba.com, AliExpress, and DHgate in its 2026 Review of Notorious Markets for Counterfeiting and Piracy (NML) report. While Alibaba and DHgate platforms have been included on the list before, Facebook and Instagram have “avoided accountability” so far, according to the letter. 

Other Barks & Bites for Friday, October 9: Korean Trademark Probe Shows Royalties Up 69% Since 2018; AAFA Urges USTR to Add Meta to Notorious Markets List; Ninth Circuit Finds Refusal to Deal in Invisalign Antitrust Case

This week in Other Barks & Bites: record quarterly profits reported by Samsung Electronics belie an AI chip shortage likely to last into 2028; a major American apparel industry organization calls for the inclusion of Meta’s Facebook and Instagram in the USTR’s Notorious Markets List; copyright advocates tell Australia’s Parliament that an opt-out framework for AI model training is not feasible; and more.

Postcards from WIPO: What’s Ahead for IP in Geneva This Fall

I am pleased to introduce “Postcard from WIPO,” a new occasional series for the U.S. intellectual property community. Having spent much of my career working on IP issues in the United States, including as Deputy Director of the U.S. Patent and Trademark Office (USPTO), I know how important it is to understand what is happening in the international IP system. From Geneva, I now have a different vantage point on that work, and I would like to share it with you.

Challenging the Validity of an EU Trademark Outside the Courtroom: The CJEU Advocate General’s Approach

A defendant facing an action for infringement of an EU trademark may challenge the validity of that trademark by filing a counterclaim before the EU trademark court. But what happens if the defendant does not do so? Is the opportunity to challenge the trademark’s validity lost, or may the defendant later seek a declaration of invalidity from the European Union Intellectual Property Office (EUIPO)?

AI Verification and Trade Secrets: A Cross-Border Framework

One possible framework for protecting trade secrets while regulating AI is an International AI Assurance and Access Compact, organized around “verifiable reciprocity.” Participating jurisdictions would recognize defined compliance findings in exchange for comparable verification obligations, alongside commitments to fund regulatory capacity. This is a proposed arrangement, not existing law. Its consequences for intellectual property (IP) turn on what evidence travels across borders and what rights remain unaffected.

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