ILN IP Insider - International Lawyers Network

Navigating the New Frontier: The Rise of U.S. Trade Secret Litigation in a Globalized Economy

For many lawyers practicing outside the United States, intellectual property protection and risk are most often associated with patents, trademarks and copyrights. Trade secrets are frequently treated as the forgotten stepchild—associated with employment law and contracts rather than as an independent body of law. But since the passage of the Federal Defend Trade Secrets Act (DTSA) in 2016, trade secret issues and disputes have steadily increased, and are now increasingly impacting both foreign companies doing business in the U.S. and domestic companies doing business abroad.

Patent litigation has declined over the past decade, while trade secret case filings have grown significantly. Court decisions and administrative remedies have left patents more vulnerable to invalidation under §§ 101 and 112, and much of the juice has been squeezed from the fruit of massive patent litigation campaigns by non-practicing entities, sometimes referred to as “patent trolls.” These developments, coupled with uncertainty about whether patents can effectively cover emerging technologies such as artificial intelligence, have driven many companies and lawyers to increase their reliance on trade secret law.

The creation of a federal claim for trade secret misappropriation under the DTSA has reinforced this shift by introducing more predictability into a previously fragmented legal landscape. Within a year of its passage in 2016, trade secret case filings rose by 25%, and last year over 1,200 trade secret cases were filed in U.S. courts. The stakes are often high: juries have returned verdicts in the hundreds of millions and even billions of dollars—though some awards have been reduced or overturned on appeal. At the same time, patent cases now face greater procedural hurdles and damages seem to be shrinking, making trade secrets an increasingly important tool for protecting and enforcing critical intellectual property in the U.S. Many plaintiffs also prefer trade secret cases because there is often a bad-guy narrative that is more compelling to a jury than the relatively dry, technical issues of patent infringement and invalidity.
The U.S. Legal Framework and Reach

Trade secrets are protected under both federal and state law in the United States. Most states follow the Uniform Trade Secrets Act (UTSA), while the DTSA operates at the federal level. A single dispute may proceed under both regimes, which have overlapping but not identical provisions.

For example, some states such as California require the plaintiff to identify its trade secrets with particularity before it can take discovery from defendants, creating a hurdle where a plaintiff sees smoke, but cannot quite show a fire. Federal courts have wrestled with whether to adopt this requirement, with one Court of Appeals—the Ninth Circuit, which includes California—very recently deciding that the plaintiff-must-go-first requirement does not apply under the Federal DTSA. Quintara Biosciences, Inc. v. Rufeng Bitztehc, Inc., 149 F.4th 1081 (9th Cir. 2025). These differences require a trade secret practitioner to be familiar with both state and federal regimes.

The DTSA is particularly significant for foreign businesses as it applies extraterritorially where conduct abroad has an impact in the United States. Limited activity, such as presenting at U.S. trade shows, partnering with U.S. firms, or hiring former U.S.-based employees may be enough to support jurisdiction over a foreign corporation under the DTSA. The DTSA also allows extraordinary remedies such as ex parte seizure orders, and provides access to the intrusive discovery tools of U.S. litigation that do not exist in most foreign jurisdictions.

The case of Motorola Solutions, Inc. v. Hytera Communications Corp., 108 F.4th 458 (7th Cir. 2024) illustrates the reach of the DTSA. Although much of the alleged misappropriation by Hytera occurred abroad—including hiring away Motorola engineers and developing infringing products based on their knowledge—the court held that Hytera’s high-level use of the trade secrets in U.S. trade shows was sufficient to establish jurisdiction. The court also concluded that the scope of the DTSA does not limit damages to derive from U.S. revenues, and allowed Motorola to seek damages based on Hytera’s worldwide sales.

Clients should be proactively advised on this expansion of the reach of U.S. trade secret law.

Trade Secrets and Artificial Intelligence

While the big AI copyright infringement cases have garnered most of the headlines in the U.S. in recent months, behind the scenes, artificial intelligence has also become a focal point for trade secret law. Because of human inventorship, eligibility and description requirements, patent protection may be unavailable, and trade secret law may provide the best protection for key AI assets. Algorithms, data compilations and AI model architectures may qualify as trade secrets if they meet the legal definition, which requires both secrecy—“reasonable measures to keep such information secret”—and that the information derives independent value from its secrecy. But trade secret owners must describe these with sufficient particularity in any litigation, and so must be familiar with both substantive and procedural aspects of trade secret cases, such as the use of protective orders to prevent public disclosure of these trade secrets.

Relying on trade secrets to protect AI-related innovations also presents unique risks. Competitors may misappropriate secrets through scraping, model querying, or even “prompt injection” attacks that coax proprietary information from systems. The opacity of advanced AI—the so-called “black box” problem—further complicates proof of misappropriation. And unlike patents, trade secret law cannot protect against “honest” reverse engineering or independent development. Further, business collaborations involving AI provide unique challenges to preserving trade secret protection because of the potential loss of secrecy. For foreign companies operating in the U.S. or with U.S. businesses, structuring agreements and compliance policies with these risks in mind is crucial.

U.S. Litigation

Like most types of U.S. litigation, trade secret cases expose clients to the distinctive features of U.S. litigation, including unpredictable juries that may impose massive damage awards and extensive discovery. U.S. discovery includes depositions, interrogatories, and extensive e-discovery. For businesses accustomed to civil law systems with limited disclosure, this can be intrusive and burdensome. And combined with extensive motion practice and expert witness discovery, these procedures can drive litigation costs to reach millions of dollars, even before trial.

Some clients also fail to appreciate the implications of the presumption in the U.S. that litigation should be public. While protective orders may prevent a business’s most sensitive information from being part of the public record, this presumption substantially increases the risk that a client’s trade secrets may become public. For this reason, clients should consider dispute resolution provisions requiring private arbitration in contracts that implicate their trade secrets, but consider a carve-out to permit emergency relief when necessary to “stop the bleeding” when trade secrets are taken.

Strategies and Preventive Measures

Given these challenges and the changing legal landscape, education and preparation are critical. Non-U.S. lawyers should become familiar with U.S. risks and standards related to trade secret law. Employment contracts, nondisclosure agreements, licenses, and many other commercial contracts touching the U.S. should be drafted with this law in mind. Internally, companies should implement and document confidentiality protocols, restrict access to sensitive information, and conduct thorough exit interviews with employees, with an eye towards protecting trade secrets. These measures not only reduce the risk of misappropriation but also help establish that the company took “reasonable measures” to protect its secrets—an essential requirement in U.S. courts.

When the possibility of litigation does arise, engaging experienced U.S. co-counsel early is vital to avoiding litigation, if possible, pursuing litigation, if necessary, and navigating U.S. trade secret litigation once the die is cast.

Conclusion

U.S. trade secret law and litigation are expanding, along with the reach of the DTSA, as patent protection may be shrinking. By understanding the distinctive features and changing landscape of U.S. law and helping their clients tailor their strategies and procedures strategies accordingly, foreign practitioners can help clients minimize risks while maximizing the benefits of trade secret protection in one of the world’s most dynamic and high-stakes legal environments.
Authors

Steve Hanle https://www.stradlinglaw.com/professionals/steven-m-hanle.html

Jason Anderson https://www.stradlinglaw.com/professionals/jason-anderson.html

Ahmad Takouche https://www.stradlinglaw.com/professionals/ahmad-takouche.html

Australian Trade Mark Case Update: Lessons from Puma and Finish on Trade Mark Registrability and Opposition

David Cinque, Special Counsel – Kalus Kenny Intelex, Melbourne, Australia

Jessica Bell, Associate – Kalus Kenny Intelex, Melbourne, Australia

When it comes to trade mark protection and registrability, being a reputable market-leading brand is not enough to guarantee either the registration of a mark, or a successful opposition to the registration of a competing mark. Two recent decisions of the Australian Trade Marks Office (ATMO) highlight that the long-standing reputation of an established brand (and indeed a conceptually similar mark) is not enough for an opposition to succeed.

Further, relying too heavily on the shape and design of the underlying product itself in a mark can be fatal to an attempt to register that mark. Each of the Puma and Finish decisions, summarised below, illustrate these concepts respectively and the factors that the ATMO delegate is likely to consider when making its decision.

Puma SE v Sunday Red LLC [2025] ATMO 197

Puma SE (Puma), the global athletic apparel brand, opposed two trade mark applications filed by Sunday Red LLC (Sun Day Red). Sun Day Red is a golf and apparel brand founded by Tiger Woods in partnership with TaylorMade. Tiger Woods himself is the official face of the brand and he is heavily involved in its promotion and marketing.

The case followed Sun Day Red’s application to register trade marks for its forward-moving tiger logos. Puma objected, arguing they were deceptively similar to its own famous bounding cat logo, which has been used in Australia on footwear, clothing and accessories since 1968.

The Sun Day Red trade marks sought registration under numerous classes, including Clothing (class 25), Sports Equipment (class 28), and Retail Store Services (class 35).

Puma argued that, while there were differences in the details such as the use of stripes, and the direction and angle in which the cat is moving, these details would not be noticed by an ordinary consumer with an imperfect recollection. It further argued that the Puma marks had acquired a sufficient reputation in Australia prior to the Sun Day Red priority date, and because of that reputation, any use of the Sun Day Red marks would be likely to deceive or cause confusion.

Sun Day Red, in turn, argued that the only similarity is that the respective trade marks both involve depictions of wildcats and that the impression made by the Sun Day Red marks is an abstract representation of a tiger with distinctive open stripes.

The ATMO rejected both grounds of Puma’s opposition.

No Deceptive Similarity

The delegate emphasised that the relevant test does not just involve a side-by-side comparison of the respective marks. Rather, the delegate considered the overall impression made by the claimed marks in light of any recollection of the opponents mark which a person of ordinary intelligence and memory would have.

The delegate was satisfied that the stripes of the Sun Day Red trade marks are distinct and memorable features which create the clear impression of a tiger, distinct and separate to the overall impression of Puma’s logo as a different kind of wildcat.

The delegate also noted that the different positioning and orientation of the animals added to the overall distinction between the marks. Ultimately, it was found that even with imperfect recollection, consumers would still be able to tell the two apart.

No Likelihood of Deception or Confusion

While Puma’s Leaping Cat had acquired a reputation in Australia prior to Sun Day Red’s priority date, reputation alone is insufficient in order to succeed under this ground of opposition. There must also be a causal link between the established reputation and the subsequent likelihood of any use of the claimed mark resulting in deception or confusion. This likelihood is determined in light of various factors, including the strength of the opponent’s reputation and the degree of similarity between the respective trade marks.

The delegate found the differences between the respective wildcats were too notable and consumers would therefore be unlikely to assume any association or relationship between the two brands, namely, that consumers would not consider use of Sun Day Red’s tiger to be an extension of, variation to, or collaboration with Puma. This is particularly in light of the fact that Puma has not changed the basic shape of its logo in over 50 years.

Reckitt Benckiser Finish B.V. v Henkel AG & Co. KGaA [2025] ATMO 198

In May 2022 Reckitt Benckiser Finish (Finish) sought to register two trade marks in class 3 (automatic dishwashing tablets). One of these trade marks is an illustration of a three dimensional shape of a dishwashing tablet, and the other was a two-dimensional visual and colourised representation of that shape.

Henkel AG & Co. (Henkel), also a manufacturer of dishwashing tablets known as the Somat range, opposed the registration of both marks on the basis that it is not possible to distinguish Finish’s products from that of any competitor in respect of automatic dishwashing tablets.

Decision: Not Inherently Adapted to Distinguish

Ultimately the grounds of opposition were successfully established in relation to both marks and their registration was refused.

In their decision, the ATMO delegate explained that a trade mark’s inherent adaption to be distinguished must be assessed in light of the likelihood that other persons or traders would want to use the mark in connection with similar goods, and in doing so, would subsequently infringe the trade mark if it were granted. If a shape, in particular, possesses any ordinary significations, and other traders may want to use the shape for those ordinary significations, then a trade mark may successfully be opposed.

The delegate noted that a dishwashing gel capsule is likely to consist of a rectangular film on which are multiple set compartments which usually differ in bright and/or contrasting colours, and that, while shapes and colours of the capsule compartments can vary, these compartments all bear an equivalent functionality by shape as to their ability to fit efficiently in an automatic dishwashing machine’s receptable.

The three dimensional mark

The delegate found that the shape and configuration did not differ enough from what consumers would reasonably expect a standard dishwashing capsule to look like. As a result, the applied-for trade mark was considered to fall within the ordinary description of automatic dishwashing capsules. The delegate also noted that other traders would have a legitimate need to use the same or a closely similar shape.

The two dimensional mark

For similar reasons, the delegate found that the visual representation was not inherently adapted to distinguish. Other traders might legitimately wish to use signs closely resembling the mark for their ordinary descriptive meaning.

Key Takeaways

These two cases are a reminder that even where a brand has amassed a large reputation in the Australian market, this does not necessarily mean a trade mark opposition will fall in its favour.

The Puma case indicates that where the trade marks in question are sufficiently distinguishable, so as that there is not a real and tangible danger of deception or confusion, competitors may be able to adapt certain elements to their own branding – provided this is done in good faith, and that these elements are sufficiently adapted to be distinct in the overall impression made.

The Finish case indicates that dominance in a particular market does not give rise to exclusivity over shapes or signs that other traders or competitors may legitimately wish to use in respect of the same type of goods or services.

The DuPont Factors for Trademark Registration

By: Daniel H. Bliss

Suppose you have filed a trademark application to register a trademark that identifies a source of goods/services for your business. During examination of the trademark application, the United States Patent and Trademark Office initially refused registration because of an alleged likelihood of confusion with a registered mark. What are the DuPont factors, and can you argue them in an attempt to overcome the refusal? If you do argue some of the DuPont factors must you address the same scope of similarity for these factors in a likelihood of confusion analysis? The answer is YES.

In re du Pont de Nemours & Co. established the following factors for consideration to determine whether there is a likelihood of confusion:

1. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.

2. The similarity or dissimilarity and nature of the goods or services as described in an application or registration or in connection with which a prior mark is in use.

3. The similarity or dissimilarity of established, likely-to-continue trade channels.

4. The conditions under which and buyers to whom sales are made, i.e., “impulse” versus careful, sophisticated purchasing.

5. The fame of the prior mark (sales, advertising, length of use).

6. The number and nature of similar marks in use on similar goods.

7. The nature and extent of any actual confusion.

8. The length of time during and conditions under which there has been concurrent use without evidence of actual confusion.

9. The variety of goods on which a mark is or is not used (house mark, “family” mark, product mark).

10. The market interface between applicant and the owner of a prior mark:

a. a mere “consent” to register or use.

b. agreement provisions designed to preclude confusion, i.e., limitations on continued use of the marks by each party.

c. assignment of mark, application, registration and goodwill of the related business.

d. laches and estoppel attributable to owner of prior mark and indicative of lack of confusion.

11. The extent to which applicant has a right to exclude others from use of its mark on its goods.

12. The extent of potential confusion, i.e., whether de minimis or substantial.

13. Any other established fact probative of the effect of use.

In re E.I. DuPont De Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973).

In a trademark opposition under Section 2(d) of the Lanham Act, the United States Patent and Trademark Office requires a refusal of trademark registration when “confusion is likely because of concurrent use of the marks of an applicant and a prior user on their respective goods.” Application of E. I. DuPont DeNemours & Co., 476 F.2d 1357, 1360 (C.C.P.A. 1973). “Likelihood of confusion is a question of law, based on findings of relevant underlying facts, namely findings under the DuPont factors.” M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 1381 (Fed. Cir. 2006). “Each of the [thirteen] DuPont factors presents a question of fact, findings with regard to which we test for substantial evidence when called into question on appeal.” Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 1370 (Fed. Cir. 2002). The Board need not consider every DuPont factor, only those “that are relevant and of record.” M2 Software, 450 F.3d at 1382.

Do the DuPont factors need to have the same scope in a likelihood of confusion analysis? In the recent case of Apex Bank v. CC Serve Corp., 2023-2143 (Decided: September 25, 2025), CC Serve Corp. (“CC Serve”) filed a trademark opposition proceeding against Apex Bank (“Apex”), who filed for registration of the word and design marks “ASPIRE BANK”. CC Serve alleged a likelihood of confusion between Apex’s marks for internet banking and CC Serve’s standard character mark, ASPIRE, used in connection with credit card services. The Trademark Trial and Appeal Board (“Board”) had found that the second Dupont factor weighed in favor of CC Serve because the there was a high degree of similarity between the parties’ services. The Board also found that the sixth DuPont factor did not weigh in favor of Apex although CC Serve had not shown that its mark has any particular commercial strength, so the Board determined that CC Serve’s mark was entitled to the normal scope of protection. The Board further found that the first DuPont factor weighed in favor of CC Serve due to the similarity between the marks. The Board concluded a likelihood of confusion and sustained the opposition. Apex appealed to the Court of Appeals for the Federal Circuit (“CAFC”).

On appeal, Apex argued that the Board erred in its likelihood of confusion analysis with respect to the second, sixth, and first Dupont factors. The CAFC considered the descriptions of each party’s services and found that substantial evidence supported the Board’s finding that the parties services were highly similar. The CAFC affirmed the Board’s findings as to the second DuPont factor.

As to the sixth DuPont factor, the CAFC found that the Board had errored. The CAFC found that when the Board has made a factual finding that the services are highly similar in its analysis of the second DuPont factor, the Board should retain the same scope in its consideration of similarity under the other DuPont factors. Thus, the CAFC vacated the Board’s findings with respect to the sixth DuPont factor and remanded the trademark opposition back for reconsideration of the appropriate scope of third-party marks eligible for consideration in view of the Board’s factual findings that parties’ services are highly similar.

As to the first DuPont factor, the CAFC found that because commercial impression informs the analysis under the first DuPont factor, the court vacated the Board’s analysis because reconsideration of the sixth DuPont factor may result in a different determination of the mark’s commercial strength or weakness and affect the overall commercial impression. Thus, the CAFC remanded the trademark opposition back to the Board for reconsideration of the first DuPont factor.

During examination of a trademark application, the United States Patent and Trademark Office may refuse registration because of an alleged likelihood of confusion with a registered mark. In response to the refusal, you can argue the DuPont factors in an attempt to overcome the refusal. However if you do argue some of the DuPont factors, these factors must be addressed with the same scope of similarity in the likelihood of confusion analysis.

Diss-cussing Defamation:

Creative Expression, Feuds, & Cross Words Across Borders

By James P. Flynn, Epstein Becker Green

The legal intersection of music, poetry, and defamation presents a fascinating landscape where creativity collides with reputational interests. The recent decision in Graham v. UMG Recordings, Inc.—filed by Canadian rapper Aubrey “Drake” Graham over the diss track Not Like Us by Kendrick Lamar, a rapper who grew up in Compton, California—offers a contemporary lens on this tension. Yet, the legal questions it raises resonate globally, from India to the United Kingdom to the US, illustrating both the universality and jurisdiction-specific nuances of evaluating artistic speech in the defamation context.

What is a diss track?

My sense is that many of us have heard this term, and probably have heard specifically about the diss tracks in this feud between Drake and Kendrick Lamar. Indeed, some of us are old enough to remember the earlier, more innocent times when Carly Simon’s You’re So Vain was considered a diss track of sorts, albeit with targets of disparagement that were a bit more ambiguous. But, in short, as one resource summarizes it, the definition of such a track is:

A diss track, diss record or diss song (an abbreviation of disrespect or disparage) is a track that verbally attacks someone, usually another artist. Diss tracks are often the result of an existing, escalating feud between the two people; for example, the artists involved may be former members of a group, or artists on rival labels.

The diss track as a medium of its own was popularized within the hip-hop genre, fueled by the hip-hop rivalry phenomenon (especially the East Coast–West Coast hip-hop rivalry of the mid-1990s). More recently, entertainers from outside the traditional music landscape have adopted the genre. […] Though the term “diss track” originated in hip-hop, there are many examples throughout music history of earlier songs written as attacks on specific individuals. Some have also been retroactively described as diss tracks in their own right.

That same resource, and others, take that history of diss tracks, at least in the US, from the present rap era all the way back to Yankee Doodle Dandy, a song “already well known by the 1750s” and “that in 1755 [was one for which] a British doctor named Richard Schuckburg penned new words to mock his American allies,” making it a proverbial “Colonial Insult.” See Yankee Doodle: The story behind the song. Outside of the U.S., some would take such rap music back to the trouble songs of the medieval troubadours and the mocking songs (Cantigas de escárnio e maldizer) that M. Ana de Guzmán has described as among the “The Disses and Rap Battles of the 13^th Century Iberian Peninsula.” This world history goes still further back to Five Ancient Forms of Diss Track, reaching all the way through the English and Scottish flyting (“a form of highly poetic abuse”) of the Dark and Middle Ages to Anglo-Saxon bēots to Greek and Latin insult poetry and even earlier to the traded barbs among Mesopotamian scribes in training in ancient Sumer, who were among “[s]ome of the first people to write stuff down.”

Though all of great interest, we leave these extended histories to your independent reading pleasure as we fast forward to today:

Graham v. UMG: A U.S. Perspective

Background

Drake, a leading figure in the music industry, has been associated with Universal Music Group for over 20 years. UMG provides artists like Drake with the necessary tools and platforms to produce, market, and sell their music. The company, via its subsidiary Universal Music Publishing Group, exclusively controls the rights to publish and distribute the works of Drake and Kendrick Lamar.

Lamar and Drake entered into a “feud,” going back and forth through “diss tracks.”

On April 19, 2024, Drake released a diss track directed at Kendrick Lamar called Push Ups. In Push Ups, Drake’s lyrics mock Lamar’s height and shoe size, (“How the f*** you big steppin’ with a size-seven men’s on/. . . Pipsqueak, pipe down”), and questions Lamar’s success, id. (“You ain’t in no big three/. . . I’m at the top of the mountain, so you tight now/Just to have this talk with your a**, I had to hike down.”). A few days later, Drake released Taylor Made Freestyle, in which he used artificial intelligence-generated voices of deceased rapper 2Pac and of rapper Snoop Dogg to goad Lamar. In the track, “2Pac” and “Snoop Dogg” share their disappointment that Lamar had not yet responded to “Push Ups.” (“Kendrick, we need ya, the West Coast savior/. . . You seem a little nervous about all the publicity/. . . you gotta show this f***in’ owl who’s boss on the West.”). Drake, in his own voice, further taunts Kendrick for failing to come up with a satisfactory response, saying, “I know you’re in that NY apartment, you strugglin’ right now, I know it/In the notepad doing lyrical gymnastics, my boy.” Drake also surmises that Kendrick was purposefully delaying his response because artist Taylor Swift had just released a new album. (“[S]hout out to Taylor Swift/Biggest gangster in the music game right now/. . . She got the whole pgLang on mute like that Beyoncé challenge, y’all boys quiet for the weekend.”).

Lamar responded to Drake in Euphoria, which was released on April 30, 2024. In the track, Lamar claims, “I make music that electrify ‘em, you make music that pacify ‘em” and that he would “spare [Drake] this time, that’s random acts of kindness.” He accuses Drake of lying: “Know you a master manipulator and habitual liar too/But don’t tell no lie about me and I won’t tell truths ‘bout you.” He insults Drake’s fashion sense (“I hate the way that you walk, the way that you talk, I hate the way that you dress”), further raps “I believe you don’t like women, it’s real competition, you might pop a** with ‘em,” and taunts Drake for being a coward with his responses (“I hate the way that you sneak diss, if I catch flight, it’s gon’ be direct.”).

On May 3, 2024, the feud between Drake and Lamar escalated again, as they increased the personal accusations at each other over the course of the day. First, Lamar released 6:16 in LA, in which he calls Drake a “terrible person” and accuses Drake of “playin’ dirty with propaganda.” Drake’s next response arrived later that day in Family Matters. Drake jabs at Lamar’s relationship with his partner (“You the Black messiah wifin’ up a mixed queen/And hit vanilla cream to help out with your self-esteem/On some Bobby sh**, I wanna know what Whitney need”) and implies that Lamar physically abused her, (“Your baby mama captions always screamin’, ‘Save me’/You did her dirty all your life, you tryna make peace.”). Moreover, Drake calls into question whether Lamar is the biological father of one of his children. (“I heard that one of ‘em little kids might be Dave Free/Don’t make it Dave Free’s”). Almost immediately after the release of “Family Matters,” Lamar unleashed the scathing Meet the Grahams, in which he accuses Drake of being a “deadbeat” father and of hiding the existence of other children. (“You lied about your son, you lied about your daughter, huh/You lied about them other kids that’s out there hopin’ that you come.”). Lamar also alleges that Drake has “gamblin’ problems, drinkin’ problems, pill-poppin’ and spendin’ problems/Bad with money, wh***house/Solicitin’ women problems, therapy’s a lovely start.” He further insinuates that Drake was a “predator” and that Drake “should die so all of these women can live with a purpose.”

The next day, on May 4, 2024, Lamar released Not Like Us. Not Like Us explicitly names Drake and his associates as pedophiles. Id. Specifically, the track contains the following lyrics:

Say, Drake, I hear you like ‘em young
You better not ever go to cell block one

To any b**** that talk to him and they in love

Just make sure you hide your lil’ sister from him…

Certified Lover Boy? Certified pedophiles…

Why you trollin’ like a b****? Ain’t you tired?
Tryna strike a chord and it’s probably A-Minor

On May 5, 2024, Drake responded in The Heart Part 6, directly denying Lamar’s allegations of pedophilia (“I never been with no one underage, …/If I was f***ing young girls, I promise I’d have been arrested/I’m way too famous for this s*** you just suggested/. . . Drake is not a name that you gon’ see on no sex offender list.”). In the track, Drake further sneers that “[t]his Epstein angle was the s*** I expected” and accused Lamar of wanting to “misdirect.” Drake also alleges that he had planted some of the information Lamar has used against him. (“We plotted for a week, and then we fed you the information/. . . But you so thirsty, you not concerned with investigation/. . . You gotta learn to fact-check things and be less impatient.”).

It is important to note that Drake may have later moved to the legal forum since Not Like Us appeared to be a commercial knockout punch (which “broke the record for most single-day Spotify streams for a hip-hop song in the US,” as one source noted) in the rap feud that the Heart Part 6 (which didn’t come close to as many views) just didn’t match up against:

Not Like Us, which was released in May 2024, was widely seen as the decisive blow in an ongoing battle between the rival rappers.

It has become the biggest hit of Lamar’s career, having won five Grammys and being one of the most-talked about moments of his Super Bowl half-time show in February.

[Saad & Savage, Drake’s lawsuit over Kendrick Lamar diss track is dismissed, BBC]

In sum, Drake filed suit alleging that Lamar’s lyrics defamed him by falsely suggesting criminal sexual misconduct, and that UMG amplified this harm through promotional activities. Drake’s lawsuit, filed in January 2025, accused UMG of defamation, harassment, and deceptive business practices under New York law. He contended that the lyrics of Not Like Us, which included phrases such as “certified pedophile” and “neighborhood watch,” were false and defamatory. Drake further alleged that UMG had promoted the song through deceptive means, including artificial inflation of its popularity, thereby amplifying the reputational damage.

Court Decision

Unfortunately, Drake suffered a similar knockout blow in court. Judge Jeannette A. Vargas dismissed the lawsuit, holding that the lyrics constituted nonactionable opinion rather than statements of fact. The court emphasized the context of a rap feud, where hyperbolic and exaggerated language is expected, concluding that no reasonable listener would interpret the lyrics as literal assertions of fact.

The Graham opinion emphasized several key points:

Context of Artistic Expression: The song was released during a highly publicized rap feud between Drake and Lamar, characterized by exaggerated and hyperbolic language. (I would add that a feud has its own Wikipedia page). The court noted that “diss tracks” are a recognized form of artistic expression within the hip-hop community, often employing rhetorical devices to disparage or attack another person or group and that are not meant to be taken literally.

Audience Interpretation: The judge determined that a reasonable listener would not interpret the lyrics as factual assertions but rather as part of the artistic hyperbole typical of rap battles.

Precedent Cases: The court referenced previous decisions, such as Steinhilber v. Alphonse and Torain v. Liu, which protected heated insults in public feuds as non-factual opinion, and Rapaport v. Barstool Sports, where a defamation claim over a diss track was dismissed (and that dismissal affirmed) for similar reasons.

The Graham court relied on precedent protecting expressive, rhetorical statements in public disputes, reinforcing the principle that artistic hyperbole enjoys robust First Amendment protection. Importantly, the ruling was procedural: a 12(b)(6) dismissal assessing the plausibility of a claim, not the ultimate truth or falsity of any factual allegation.

Comparative U.S. Cases

Graham’s reasoning fits among other, earlier U.S. cases addressing songs and poems:

In Parks v. LaFace Records (the Rosa Parks song), the Sixth Circuit held in 2003 that the song did not make verifiable statements of fact about Rosa Parks, and therefore her defamation claim failed. The court underscored the necessity of a false factual assertion “of and concerning” the plaintiff. The parties ultimately settled in 2005 on undisclosed terms. To understand Parks, one must understand that, although she was a very sympathetic plaintiff, the constitutional imperatives of the 1^st Amendment not only overwhelmed the defamation and false light claims, but also led the Court to reject publicity and trademark claims as well in favor of further bolstering the claims of creative license.

Fisher v. Dees involved a parody of the song When Sunny Gets Blue, where the Ninth Circuit similarly found that the parody could not reasonably be interpreted as defamatory. The court reinforced that comedic exaggeration and parody fall within constitutionally protected expression. As in Parks, the Fisher court also rejected non-defamation claims, which in Fisher amounted to copyright and related claims compared to the trademark claims in Parks.

Freedlander v. Edens Broadcasting, Inc. provides an illustrative case where plaintiffs alleged defamation from a song broadcasting purportedly false statements implying criminal activity. Emphasizing the protections afforded comedy, which we have discussed here before as well, the court noted that the context as much as the content precluded the possibility of defamation: “it is impossible to believe that a reader would have perceived the song to be anything else than irrelevant and irreverent social commentary.”

Each of these earlier U.S. cases suggested the outcome seen in Graham.

An International Comparison: India

On previous occasions, we have drawn lessons from, or followed developments in, India to illustrate how these issues play out beyond U.S. borders. We did it in a piece concerning deep fakes and elections, and in another concerning satire and humor as defenses to legal claims (where we cited the Indian High Court at Delhi in Tata Sons Limited vs Greenpeace International & Anr on 28 January 2011 (para. 24, 41-43)). We also did it when discussing copyrighting functional objects, and extensively when discussing whether one can acquire individual intellectual property rights in holy names, sacred words, and other aspects of creation. Probably did it on other topics as well, but these examples suffice to illustrate the many ways that a comparative law analysis can deepen our understanding, wherever we sit.

Now we look to India in this piece concerning whether non-copyright legal liability can arise from a poem or song.

The Indian Supreme Court has confronted analogous tensions in the Judgment in Imran Pratapgarhi, Criminal Appeal No.1545 of 2025, where a Congress MP and poet shared a poem with an accompanying video-ed song clip.

Complaints led to a First Information Report (or FIR) being filed alleging public order offences. Essentially, somebody filed charges at Jamnagar Police Station for the offences punishable under Sections 196, 197(1), 302, 299, 57 and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short, ‘the BNS’), alleging that the posted video of a recited poem incited disorder because “the spoken words of the poem incite people of one community against another, and it hurts a community’s religious and social sentiments. It is alleged that the song had lyrics that incited people of other communities to fight for the community’s rights. It is alleged that the video posted by the appellant created enmity between two communities at the national level and hatred towards each other. It was further alleged that it had a detrimental effect on national unity.” Pratapgarhi Judgment at 3. According to the charging party, the video-ed poetry reading posted on X was one “using provocative language about the religion, caste and language of Hindus, Muslims and other castes living in India, promoting enmity between different groups, making statements that are detrimental to national unity, making statements that are harmful to national unity, making statements with the intention of hurting religious feelings, making religious insults, spreading the video among the people with the intention of causing shock, inciting others to commit a crime.” Pratapgarhi Judgment at 9.

The charged party claimed that the recited verse did nothing of the sort, but that on “a plain reading of the song poem, it is a message of love and non-violence….[I]t is about sacrificing oneself to fight for rights and truth. The poem promotes non-violence and preaches that one must suffer injustice with love.” Pratapgarhi Judgment at 4-5. As the Court noted, of the poem that had been recited in Urdu, that:

A broad English translation of the said poem reads thus:

“Those who are blood thirsty, listen to us

If the fight for our rights is met with injustice

We will meet that injustice with love

If the drops flowing from a candle are like a flame (Analogy: if the tears from our face are like a flame)

We will use it to light up all paths

If the bodies of our loved ones are a threat to your throne

We swear by God that we will bury our loved ones happily

Those who are blood thirsty, listen to us.”

[Pratapgarhi Judgment at 6-7]

The Indian Court agreed with the charged party’s reading, and so ruled in a March 28, 2025 opinion. Pratapgarhi Judgment at 7-8.

Indeed, on that basis, the Court quashed the FIR, emphasizing the constitutional protection of artistic and related expression. In fact, those protections are so strong that, according to the Indian Court, even though such protected expressions are marked by “[s]ome extravagance of language” and “the usual crude emotional appeal which is the stock and trade of the demagogue, as well as a blundering and ineffective attempt to ape the poets.” Pratapgarhi Judgment at 32. Because “[l]iterature including poetry, dramas, films, stage shows, satire and art, make the life of human beings more meaningful,” Pratapgarhi Judgment at 43, “Courts, particularly the constitutional Courts, must be at the forefront to zealously protect the fundamental rights of the citizens. . . [and] to protect and promote the fundamental rights, including the freedom of speech and expression, . . .[and] must remain ever vigilant to thwart any attempt to undermine the Constitution and the constitutional values, including the freedom of speech and expression.” Pratapgarhi Judgment at 44.

Though this is more of a fighting-words-type case than a defamation one, this Indian decision rests, like Graham, on a notion of the freedom that an artist must have to express perspective, regardless of whether it may be unpopular with many or simply a single person arguably defamed:

The right of the playwright, of the artist, writer and of the poet will be reduced to husk if the freedom to portray a message – whether it be in canvas, prose or verse – is to depend upon the popular perception of the acceptability of that message. Popular perceptions, however strong cannot override values which the constitution embodies as guarantees of freedom in what was always intended to be a free society.”

[Pratapgarhi Judgment at 46]

The Indian Court ended its analysis by noting that “75 years into our republic, we cannot be seen to be so shaky on our fundamentals that mere recital of a poem or for that matter, any form of art or entertainment, such as, stand-up comedy, can be alleged to lead to animosity or hatred amongst different communities. Subscribing to such a view would stifle all legitimate expressions of view in the public domain which is so fundamental to a free society.” It is worth noting that four days before this ruling, a “mob violently ransacked a Mumbai comedy club and its building has been partly demolished after one of India’s most prominent comedians performed a satirical song about a local ruling politician during a performance there.” So, one can conclude that this Court stood strong for free speech in the moment. As the U.S. approaches its semiquincentennial, one only hopes its appellate courts will remain as unshakeable as its younger democratic siblings in defense of protected expression, especially as important lower court on that score are examined. See, e.g., here.

Other OUS Examples

Indeed, looking quickly beyond the Indian example, here is a chart of some further OUS matters and considerations:

Jurisdiction / Source	Case / Doctrine	Key Facts / Issue	How Court Treated Artistic / Expressive Speech	Key Holding or Principle	Relevance / Caveats
UK / historic	Whitehouse v Gay News Ltd, [1979] AC 617, HL	A poem published in Gay News (explicit, provocative) was prosecuted under blasphemy laws	The court treated the poem as criminally libelous/blasphemous, not as a defamation suit by a private individual	The publishers were convicted under blasphemy law for “blasphemous libel” (not “defamation of a person”).	Not a civil defamation case; shows that expressive works can be prosecuted under non-defamation statutes (religious blasphemy) in some jurisdictions.
Canada (commentary)	“Expert insight: What does the law say about defamatory lyrics?” (Western News / Western University)	Discussion of rap feuds (e.g. Drake / Lamar)	Recognizes that lyrics can be the subject of libel claims; but emphasizes the high threshold and contextual defenses	Musical lyrics and audio recordings can qualify as libel (in theory), but defenses like opinion, hyperbole, context weigh heavily.	This is commentary, not binding law; shows academic/legal awareness in Canada.
Australia	“Protest Music and the Law” (ArtsLaw)	Guidance on whether songs (lyrics) may be defamatory under Australian law	Treats lyrics like statements: they can be sued over, but must satisfy the same defamation elements	All the usual defamation elements/defenses apply (e.g. truth, contextual meaning, etc.).	That is a legal guide, not a court judgment; Australia has had some modern defamation cases involving expressive media, but I didn’t find a high-profile case in which a court definitively held a lyric or poem defamatory.
UK / Canada (comparative)	“The Libel Bible: comparison Canada / UK” (Lexology)	Surveys defamation law frameworks in UK & Canada	Explains that in both jurisdictions, one must show “defamatory statement,” identification, publication etc., and also describes available defenses (e.g. truth, honest opinion)	In UK (post-Defamation Act 2013) there is a “serious harm” threshold. In Canada, falsity/damages are presumed once defamation is established, shifting burden to defendant.	This article does not focus specifically on songs/poems, but gives the legal landscape in which claims would be assessed in those jurisdictions.

Now let’s turn to a comparison of the reasoning across jurisdictions.

Cross-Jurisdictional Insights

Below is a side-by-side comparison highlighting alignments, differences, and tensions between Graham and the non-U.S. material:

Feature	*Graham v. UMG* (U.S., Judge Vargas)	Comparative Non-U.S. / Doctrine Material
Baseline approach to expressive works	The court begins from the idea that lyrics in rap feuds are likely to be viewed as rhetorical, not literal. The question is whether a reasonable listener would treat the statement as fact.	Classic in UK/Common Law jurisdictions: similarly, courts and commentators emphasize whether a statement is reasonably interpretable as factual, with recognition that creative works often use figurative language.
Role of context	Central. The court repeatedly cites genre (diss track), audience expectations, prior lyrics in the feud, tone, and the fact this is part of a back-and-forth musical sparring as factors showing non-literal meaning.	Comparative doctrine also stresses context (medium, audience, expectation, tone) as a critical filter. That is one of the consistent threads across jurisdictions.
Reasonable recipient standard	Yes: “no reasonable listener would view it as verifiable fact” is the linchpin.	In UK/Common Law jurisdictions, courts often ask whether an ordinary person, reading (or hearing) the statement, would infer it as a factual assertion. This notion of “ordinary reader/reasonable person” is common.
Threshold for fact vs opinion	The court treats the line as opinion/hyperbole because of the inherent rhetorical, exaggerated nature of diss tracks, not as a plainly false factual statement.	In comparative jurisdictions, the “honest opinion /fair comment” (UK, Canada) or “expression of opinion” doctrine often parallels U.S. distinction, although statutory forms vary. Because creative works typically include exaggeration, many claims fail on that line.
Procedural posture (dismissal standard)	The case is resolved at the 12(b)(6) motion stage — i.e. the court does not accept factual disputes, but determines that even assuming the plaintiff’s facts, the lyric is nonactionable as a matter of law.	Many comparative cases involving expressive content are resolved early (motions, summary judgment) or not fully litigated, so courts often decide whether the impugned statement could be defamatory. The comparative doctrine includes early dismissals for pure opinion or non-actionable rhetoric.
Statutory/ doctrinal filters	The U.S. First Amendment provides strong protection for expressive speech; the court frames the decision in expressive-liberty terms (i.e. protecting artists).	In various jurisdictions, additional statutory filters or limitations exist (e.g. the UK’s serious harm threshold, in Canada defenses like justification or fair comment; in India, constitutional protections). These can prevent weak claims from proceeding even before a full trial.
Burden of proof /falsity assumption	In U.S. defamation law, the plaintiff must plead falsity (or provide a defamatory statement that is presumed false in some contexts) and must overcome the defense of opinion. Here, Drake’s allegations are considered insufficient to cross that boundary.	In many non-U.S. jurisdictions, once a defamatory statement is found, falsity and damages may be presumed, shifting the burden to the defendant. But prior to that, the threshold question of whether a statement qualifies as “defamatory” or “of fact” is still analyzed.
Expressive medium vs traditional media	The opinion emphasizes that a rap diss track is not like a newspaper article; audience expectations differ. This medium distinction is central to the reasoning.	Comparative doctrine likewise recognizes that different media (artistic works, satire, opinion columns) are read differently from news reporting. Courts are more cautious about treating them as factual pronouncements.
Published decisions affirming lyric defamation	None in this case (the court dismisses). The opinion cites analogous U.S. cases rejecting lyric defamation.	In comparative jurisdictions, no clear published judgments found holding that a song lyric or poem was itself defamatory. The doctrine suggests that many such claims would fail, for the same reasons (context, audience expectations, rhetorical nature).
Limitations/ uncertainties	Because Graham is decided on a motion to dismiss, factual disputes about how listeners interpreted the lyrics are not explored in depth. Also, the opinion is U.S.-centric; First Amendment framework creates potentially unique substantive overtones.	Comparative doctrine sometimes lacks case law in exactly analogous settings; some jurisdictions impose statutory filters or higher procedural gates (e.g. “serious harm” in UK). Also, differences in burden and defamation law structure may change incentives. But certainly see the Indian example above, which illustrates the impact of constitutional imperatives OUS.

Thus, when comparing Graham v. UMG to the international and earlier U.S. cases, note well that:

Context Matters: Across jurisdictions, courts analyze the medium, genre, and audience expectations. Diss tracks, parody songs, and poems with hyperbolic content are consistently treated as unlikely to constitute verifiable fact.

Thresholds for Defamation: The U.S. requires a false statement of fact; India emphasizes freedom of expression in creative works; the Rosa Parks and Fisher v. Dees cases show U.S. courts reject claims that rely on metaphorical or comedic statements.

Audience Interpretation: Courts consider how a reasonable listener or reader would interpret the statement, with artistic forms often entitled to greater leeway.

Procedural Stage: Dismissals on motions to dismiss or early-stage quashing, as in Graham or Pratapgarhi, are common, reflecting courts’ reluctance to let speculative claims impede artistic expression.

These comparisons illustrate that, much like in the U.S., the threshold for actionable defamation in artistic works is high. Courts weigh context, audience perception, and the expressive nature of the work, often erring on the side of free expression.

With that comparison in mind, we can now conclude.

Conclusion

Graham v. UMG underscores a recurring principle: artistic expression, whether in song, parody, or poetry, enjoys a high degree of legal protection. International examples from India and elsewhere, and prior U.S. cases, demonstrate a shared judicial recognition that exaggeration, hyperbole, and satire are not inherently defamatory. (Though it probably remains a bit of a stretch to suggest that they are non-defamatory inherently).

For creators, Graham and these other cases reaffirm that, while reputational harm is a legitimate concern, courts consistently require concrete, false factual statements uttered in a context suggesting an actual report of real events before permitting defamation claims to proceed. As the global landscape of music and media evolves, understanding these thresholds is crucial for artists, publishers, and legal practitioners navigating the delicate interface between creativity and the law.

Global Giants vs. Local Legends: The Fanatics v FanFirm IP Battle Unpacked

Fanatics, LLC v FanFirm Pty Ltd [2025] FCAFC 87

Jessica Bell, Associate – Kalus Kenny Intelex, Melbourne, Australia.

The Full Federal Court of Australia has passed judgment on a clash between local sports merchandiser, FanFirm Pty Limited, and a global opponent, Fanatics, LLC in a case about when the line between trade mark co-existence and infringement should be drawn.

The Players

Home Team: FanFirm Pty Ltd (FanFirm) – an Australian company operating since 1997 that specialises in arranges sports tours and selling related merchandise.

Away Team: Fanatics, LLC (Fanatics) – a major U.S based online retailer of officially licensed sports merchandise and apparel, selling through multiple via e-commerce platforms. Fanatics’ long list of officially licensed partnerships includes the NBA, F1, NFL and NASCAR.

The Trade Marks

This case concerns two of FanFirm’s registered trade marks. One is the word mark FANATICS and the other is the below device mark (the FanFirm Marks).

The FanFirm Marks were originally registered in April 2008 under various trad mark classes, which included class 25 for clothing and other apparel. In 2018, FanFirm extended the registration of these marks to include class 35, which broadly relates to the use of marks in the provision of retail services.

Fanatics, in the meantime, registered several marks in Australia between 2008 and 2017, such as the device mark below and the word mark FANATICS, also in classes 25 and 35.

The Dispute

Despite both holding marks containing the word FANATICS, FanFirm and Fanatics have largely coexisted without much conflict, save for some trade mark oppositions over the years which were ultimately withdrawn.

During this time, Fanatics had focused primarily on selling merchandise related to US and European-based sporting leagues and teams. FanFirm, in contrast, maintained a narrow focus on Australian leagues and teams.

However, in 2020, Fanatics began developing a stronger profile in the Australian market and expanded its partnerships to include local Australian brands and leagues, such as Rebel Sport and the AFL, which led FanFirm to commence proceedings for the infringement of the FanFirm Marks.

In response to FanFirm’s claims, Fanatics argued that the FanFirm marks should be removed from the register on the basis that they were likely to deceive or cause confusion. In particular, that consumers would be caused to wonder that FanFirm’s products are made by or somehow affiliated with Fanatics.

Half Time: The Primary Judgment

In July 2024 the primary judge of the Federal Court found that the two companies were indeed trade rivals and both, at their heart, focused on the sale and supply of sports merchandise to sports fans.

The Court held that FanFirm had priority with respect to FANATICS, due to its earlier use of the word mark in Australia in both the apparel (class 25) and retail services (class 35) and as such, Fanatics had infringed the FanFirm Marks.

The primary judge also rejected Fanatics’ arguments and dismissed its cross claim that the FanFirm marks should be removed from the Australian register.

In addition, it was held that Fanatics’ use of FANATICS did not support its class 35 registration for retail services. Merely placing FANATICS on its products was insufficient to demonstrate use of the mark with respect to retail services and so the court ordered that class 25 be removed from Fanatics’ trade mark registrations.

Fanatics appealed this decision to the Full Court of the Federal Court of Australia.

Full Time: The Appeal

In July 2025, the Full Court of the Federal Court dismissed Fanatics’ appeal. The Federal Court agreed with the primary judgment that merely applying a mark to products does not constitute use under class 35. Rather, the mark must operate as an identifying factor as to the provider or source of the retail service.

The Full Federal Court also agreed with the prior decision that FanFirm was the earlier user of FANATICS in Australia and therefore, FanFirm could not be infringing Fanatics’ trade mark. Notably, Fanatics was unable to demonstrate honest concurrent use of the mark, nor a good faith defence on the basis that the company was using its own name. This is because Fanatics did not, in fact, act in good faith – it was aware of FanFirm’s longstanding use in Australia at the time of registering its marks and was unable to provide sufficient evidence of honest use.

Extra Time?

A further appeal is unlikely, as from a decision of the Full Federal Court requires special leave from the High Court to do appeal.

Final Scoreboard: Key Takeaways

This decision is a stark reminder that even global brands are not given a sure bet with respect to a particular mark or component of their branding in Australia. Where there is use of a mark predating the arrival of an international company in Australia, that earlier use is the ticket to ownership and will be granted priority where there are competing registrations.

Fanatics’ loss of its class 35 registration demonstrates the importance of the actual use of a mark in Australia – where the use in question does not sufficiently encapsulate the category under which the mark is registered, this could be an avenue through which registration can be lost or opposed. This also demonstrates the importance of accurate and detailed record-keeping with respect to the use of your marks, so as to be able to prove that your use predates that of any potential opponents if the question was to arise.

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