US federal courts and the United States Patent and Trademark Office (USPTO) have, over the past 18 months. Shifted their collective approach to intellectual property enforcement in ways that directly affect international companies operating in the American market. Trademark application filing standards have tightened, opposition proceedings have become more contested, and US District Court judges are scrutinising infringement claims with renewed procedural rigour. For businesses that rely on IP registration and enforcement in the United States, ignoring these shifts carries measurable risk.
Recent court practice in the United States has moved toward stricter evidentiary standards for IP infringement claims, particularly in trademark and copyright matters before federal courts. International companies must now satisfy heightened documentation requirements at the pre-litigation stage. Businesses that have not audited their US IP portfolios in the past 12 months face a concrete risk of weakened enforcement positions.
This alert describes the key procedural changes, identifies which business categories are most exposed, and sets out five immediate actions international companies should take now.
What has changed in US IP enforcement practice
Several converging developments have reshaped the enforcement environment across US intellectual property legislation.
First, US District Court judges – particularly in the Southern District of New York and the District of Delaware – have raised the bar for establishing likelihood of confusion in trademark disputes. Courts now expect detailed evidence of consumer surveys, market proximity analysis, and channel-of-trade documentation at the pleading stage. A complaint that would have survived a motion to dismiss two years ago may now be dismissed for insufficient specificity.
Second, the USPTO's Trademark Trial and Appeal Board (TTAB) has increased scrutiny of specimens submitted with trademark applications. Digitally altered images and generic website screenshots are being rejected at a materially higher rate. Applicants using Nice classification (the international system for categorising goods and services in trademark filings) must now align their identification of goods and services with greater precision. Broad class descriptions that were routinely accepted are now being refused or subjected to office actions requiring amendment.
Third, opposition proceedings before the TTAB have grown in complexity. Opposers are using expanded discovery tools, and the Board has shown willingness to extend trial periods where electronic evidence – including social media and e-commerce data – requires additional authentication steps.
Fourth, federal courts handling patent infringement claims have tightened claim construction procedures. Early case management conferences now routinely include requests for claim charts, limiting the strategic flexibility that defendants once had to delay substantive engagement.
For companies structured as a Delaware LLC (limited liability company) or other US entity, these shifts affect both offensive and defensive IP strategies. Entities registered with the Securities and Exchange Commission (SEC) that hold IP assets on their balance sheet should also note that enforcement credibility now factors into asset valuation assessments in certain M&A due diligence processes.
Who is affected and why immediate action matters
The businesses most exposed to these changes fall into four categories.
International technology companies with pending or recently granted US trademark or patent registrations face the greatest immediate exposure. Any infringement claim they plan to bring in a US federal court will now require substantially more pre-filing preparation.
E-commerce businesses selling into the US market are affected by the tightened specimen rules. A trademark application supported only by a generic product listing page will encounter resistance from USPTO examiners.
Companies in ongoing opposition proceedings before the TTAB must reassess their discovery and evidence strategy. Proceedings commenced before the procedural changes took effect may now involve different evidentiary expectations for the remaining trial phases.
AI and software companies should note that courts are applying closer scrutiny to copyright ownership chains for AI-generated or AI-assisted content. The intersection of IP legislation and emerging technology regulation is addressed in more depth in our analysis of AI and technology law in the United States.
The compliance window is narrow. Businesses with active US IP litigation or with trademark applications filed in the past 18 months should treat this alert as requiring action within 30 to 60 days. Delay does not preserve options – it narrows them.
For a tailored strategy on IP enforcement in the United States, reach out to info@ferrazwhitmore.com.
Immediate actions for international companies
The following five steps address the most time-sensitive risks arising from the current enforcement environment.
- Audit all pending trademark applications at the USPTO. Confirm that specimens of use meet current evidentiary standards and that Nice classification descriptions accurately reflect the actual goods and services offered in the US market. Applications with broad or generic identifications should be proactively amended.
- Review any active or contemplated infringement claims before filing in a US District Court or initiating TTAB opposition proceedings. Assess whether your evidentiary record – consumer surveys, sales data, channel documentation – is sufficient to survive heightened pleading scrutiny.
- Evaluate dispute resolution clauses in US commercial contracts. Where litigation risk is material, consider whether JAMS or AAA arbitration (the two leading US private arbitration providers) offer a more predictable enforcement path than federal court proceedings. Arbitration before JAMS or AAA can reduce procedural exposure while preserving substantive IP claims.
- Confirm ownership chain documentation for all US IP assets. This is particularly urgent for software, AI-assisted creative works, and assets acquired through M&A transactions. Courts are scrutinising assignments, work-for-hire agreements, and inventor declarations with increased care.
- Monitor opposition proceedings actively. If your company is a respondent in a TTAB opposition, assess whether the opposer has deployed expanded discovery tools. Engage US counsel to review the current status of the proceeding against the Board's updated scheduling expectations.
International businesses managing cross-border IP portfolios that include US registrations should also review the parallel enforcement environment in other jurisdictions. Our alert on IP enforcement developments in Brazil covers relevant shifts in that market for companies operating across the Americas.
For companies with an existing intellectual property practice in the United States, these procedural changes require a strategic reassessment of both portfolio management and litigation readiness. The cost of inaction is measurable: weakened enforcement positions, increased exposure to cancellation proceedings, and reduced leverage in licensing negotiations.
About Ferraz & Whitmore
Ferraz & Whitmore is an international law firm based in Lisbon, advising business clients across 46 jurisdictions. Our intellectual property practice covers trademark registration, opposition proceedings, and infringement claim strategy in the United States and across European, Asian, and Latin American markets. Engaging a lawyer in the United States with cross-border experience is essential when enforcement strategy must align with both common law procedural rules and international IP registration systems. As an international law firm advising on US matters, Ferraz &. Whitmore combines English common law tradition with deep familiarity with civil law jurisdictions. a combination that matters when IP assets move across legal systems. Our attorneys have advised on trademark, patent, and copyright enforcement matters before US District Courts and the TTAB. The firm participates in cross-border IP practice groups and maintains a network of US local counsel. To discuss your IP enforcement situation in the United States, contact us at info@ferrazwhitmore.com.
Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.