6 Key Takeaways Recent Developments in US Trademark and Unfair Competition Law

Insights: Publications 6 Key Takeaways | Recent Developments in U.S. Trademark and Unfair Competition Law

June 15, 2026

Kilpatrick partner Ted Davis spoke recently on recent developments in U.S. trademark and unfair competition law as part of Kilpatrick's "IP Innovations" series.

That presentation addressed, inter alia, the following topics:

The precipitous decline in precedential opinions from the Trademark Trial and Appeal Board;
The continued post-Jack Daniel's viability of the restrictive test for infringement first articulated in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), in cases not presenting trademark uses by defendants;
Judicial preoccupation with actionable uses in commerce by defendants;
The Ninth Circuit's continued incoherent and inconsistent applications of the nominative fair use doctrine;
The disposal of claims of consumer standing in inter partes proceedings; and
Possible—but perhaps not actual—guardrails on the failure-to-function ground for the refusal of applications by the USPTO.