Trade Secret Law Evolution Podcast, Episode 93: Circuit Cases On Measuring Damages And Whether Misappropriation Can Be A RICO Predicate

As artificial intelligence reshapes corporate marketing, .ai domain names have become prime digital real estate worth millions. A recent WIPO ruling in a high-profile dispute between a combat sports brand and a domain investor reveals critical lessons about trademark rights, bad faith claims, and the limits of domain seizure policies in the booming AI domain market.

The Trademark Trial and Appeal Board recently affirmed that a specific shade of bright green (Pantone 2297C) cannot be registered as a trademark for construction tripod legs due to functionality concerns. The decision highlights the complex interplay between color marks, safety features, and competitive disadvantage in trademark law, examining how high-visibility colors serve essential purposes beyond source identification.

As entertainment lawyers, we are often asked a deceptively simple question by creatives, producers, and studios: “Can we use this trademark in our project?”

M&A activity in AI is increasingly defined by speed, asymmetry of information and the quality of intangible assets. Financial performance still matters, but I’ve noticed it is no longer sufficient on its own. Buyers are underwriting something less visible and in many cases more determinative of long-term value: the defensibility of the underlying technology.

The Defend Trade Secrets Act marked its 10th anniversary in 2026, promising a unified national standard for trade secret protection. Has federal litigation delivered on this promise, or do state laws and circuit splits continue to fragment the landscape? This analysis examines key trends, unresolved legal questions, and emerging challenges posed by artificial intelligence in trade secret enforcement.

As renewable energy companies race to innovate and scale, many are overlooking a critical vulnerability: inadequate intellectual property protection. Two experienced attorneys reveal the strategic steps technology-focused clean energy firms must take throughout product development to safeguard their competitive position, secure financing, and maximize value in future transactions.

As generative AI patent filings surge globally, companies developing autonomous systems, robotics, and physical AI face new strategic challenges from incumbent patent holders and international filers. Understanding which innovations to patent versus protect as trade secrets has become critical for navigating this rapidly evolving landscape.

Patent prosecutors often overlook manufacturing method claims due to enforcement challenges, but these patents can provide strategic advantages under 35 U.S.C. § 271(g). A growing split among district courts regarding downstream liability for sellers and users of products made by patented processes creates both uncertainty and opportunity for patent owners seeking to expand protection beyond traditional composition claims.

The doctrine of obviousness-type double patenting (“OTDP”) is one of the most complicated aspects of U.S. patent law, but the U.S. Court of Appeals for the Federal Circuit soon will have an opportunity to limit when OTDP can arise.

In a recent PTAB decision, Director Squires addressed whether Microsoft's IPR petition should proceed despite Sandpiper CDN's discretionary denial request. The ruling hinged on two critical factors: the novelty of Microsoft's art citations and Sandpiper CDN's failure to disclose its own commonly assigned prior art during patent prosecution. This case provides important guidance on how patent owners' prosecution conduct can impact discretionary denial outcomes at the Patent Trial and Appeal Board.

The Federal Trade Commission has reached a proposed $12 million settlement with Humboldt Merchant Services based on allegations that it processed payments for merchants that were shell companies or engaged in fraud. This enforcement action highlights the FTC's scrutiny of payment processors and their obligations to identify and prevent fraudulent merchant activity.

FINRA member firms are rapidly deploying AI tools for employee use, creating new opportunities for misuse and compliance challenges. Drawing on decades of internal review experience, this analysis identifies key risk areas that broker-dealer firms should evaluate as AI adoption accelerates across their organizations.

The Court of Justice of the European Union has ruled on whether political expression and parody can justify the unauthorized use of a reputed trademark, examining the balance between intellectual property rights and freedom of speech. The case arose from a Belgian political party's immigration campaign that adopted IKEA's branding without permission, prompting Inter IKEA to bring infringement proceedings.

El Ejecutivo Federal presentó el Paquete Económico 2027 ante el Congreso, proponiendo cambios significativos en la Ley del Impuesto sobre la Renta y la Ley de Ingresos de la Federación. ¿Cómo afectarán las nuevas limitaciones a deducciones, pérdidas fiscales e intereses la tasa efectiva de tributación de las empresas mexicanas?

DigiNovations, Inc. brought a nine-count complaint in Massachusetts Superior Court against its former executive vice president, Wales, former employee Mackos, and the competing company they founded...

Employers increasingly rely on AI-enabled recruiting tools to streamline hiring, but these technologies introduce new litigation risks under employment discrimination laws and emerging AI regulations. Understanding the legal landscape, discovery implications, and governance strategies is essential for organizations implementing AI-assisted hiring systems.

A California federal court ruled that plaintiffs cannot avoid arbitration simply by labeling their claims as "sexual harassment." The decision requires plaintiffs to plausibly allege conduct that actually constitutes sexual harassment under governing law before the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act applies. This ruling establishes important limits on attempts to circumvent arbitration agreements through strategic claim labeling.

The IRS and Treasury Department have proposed sweeping new regulations that could strip tax-exempt status from private schools using race-based criteria in admissions, scholarships, or programs—even when designed to promote diversity or remedy historical discrimination. These proposed rules would affect an estimated 18,000 educational institutions nationwide and create significant compliance challenges for schools, their donors, and holders of tax-exempt bonds financing educational facilities.

The Court of Appeal's recent decision in Thomas v. Nicholas provides critical guidance on how the locality principle operates within the tort of private nuisance under English law. This analysis examines the implications for real estate finance transactions, where a borrower's use of financed assets may be disrupted by neighbouring landowners or where the borrower's own activities create liability risks that affect asset value, liquidity, and lender security.

Nikki Dobay and Glenn Newman explore New York City's controversial pied-à-terre tax, examining its rushed implementation, administrative challenges, and potential constitutional vulnerabilities. The discussion reveals how this new surcharge on high-value non-primary residences may face legal challenges while setting a precedent for similar taxes nationwide.