Hank's IP Brew — Issue #20

Howdy, y'all.

This week: Congress unanimously advanced a bill that would give every person in America — not just celebrities — the right to control how AI uses their voice and likeness, with a takedown process that doesn't require hiring a lawyer. And a federal jury ruled that you can't patent a shearling boot silhouette — handing fast-fashion dupe brands a significant win and leaving a hard lesson about which IP tools actually hold up in court.

Let's get into it.

On June 18, the Senate Judiciary Committee voted unanimously — by voice vote, no dissent — to advance the NO FAKES Act to the full Senate floor. The bill's full name is the Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2026 (S. 4591), and it has been in various forms before Congress since 2023. This is the first time it has cleared committee.

That matters. A unanimous committee vote is a strong signal. It also means the bill now has to survive a full Senate vote, pass the House, and be signed into law — none of which is guaranteed. But for the first time, this legislation has real momentum, and the provisions in it are worth understanding now.

What the NO FAKES Act would actually do

Three things creators need to know:

First, it would create a federal property right in your voice and likeness. Right now, protection against AI cloning depends on a patchwork of state right-of-publicity laws that vary enormously from state to state. Some states have strong protections; others have almost none. The NO FAKES Act would establish a uniform federal right — available to every person, famous or not — to control how AI-generated versions of their voice or visual likeness are created and distributed. That right would be licensable, meaning you could choose to authorize certain uses while blocking others.

Second, it would create a DMCA-style notice-and-takedown process for AI fakes. This is the most practically significant provision for most creators. Under current law, if someone clones your voice and posts it online, your options are limited: you can try to get the platform to take it down voluntarily, or you can sue. Suing costs money and takes years. The NO FAKES Act would borrow the DMCA's framework — the same process used for copyright takedowns — and apply it to unauthorized AI voice and likeness content. Find a fake, send a notice, and the platform is required to take it down promptly. No lawsuit required.

The counter-notice mechanism also mirrors the DMCA: if this bill passes, the person who posted the content can file a counter-notice claiming authorization or that the removal was a mistake, and if the original complainant doesn't file a lawsuit within 14 days, the content is restored. Anyone who knowingly files a false counter-notice faces penalties of $25,000 per filing or actual damages plus fees, whichever is greater.

Third, platforms can be held liable for hosting unauthorized fakes they know about. This is a significant departure from the broad Section 230 immunity platforms currently enjoy. Under the NO FAKES Act, a platform that hosts an unauthorized AI replica — and knows it — faces potential liability. That gives platforms a real incentive to respond to takedown notices promptly rather than ignore them.

What it doesn't do

First Amendment uses are protected. News reporting, parody, criticism, documentary, and similar expressive uses are explicitly excluded. Nonprofit libraries, archives, and accredited educational institutions engaged in non-commercial research are also exempt.

The bill would preempt future state laws on digital replicas but would preserve existing state causes of action — including the Tennessee ELVIS Act and similar statutes already on the books. State protections you have now wouldn't disappear.

The connection to Issue #19

Last week we covered the growing trend of artists — Swift, Richie, McConaughey — using trademark law as a proactive defense against AI voice cloning, because no federal statute covered the gap. The NO FAKES Act is the gap. If it passes, trademark sound marks won't go away as a strategy, but the urgency of filing them as the only available federal tool diminishes. The bill would give every creator a federal right without requiring them to individually file and prosecute a trademark application.

That said: the bill hasn't passed yet. The trademark strategy is available today. The NO FAKES Act may be available by the end of the year — or it may stall again. Don't wait to protect yourself on the assumption that Congress will finish the job.

Deckers Outdoor Corporation — the owner of UGG — spent three years and significant legal resources trying to stop Quince from selling a shearling boot that looked a lot like the UGG Classic Ultra Mini. The case went to a federal jury in the Northern District of California in June. After four days of trial and a little over two hours of deliberation, the jury handed Quince the win.

Here's the verdict in plain English: yes, Quince infringed Deckers' design patent. And also, Deckers' design patent is invalid. Both things at once. The result is that Quince walks away without liability and without paying damages — and with its antitrust counterclaim still very much alive.

The same week, Coach quietly dropped its own lawsuit against Quince. Two major fashion brands, one week, both losses.

How we got here

Deckers originally filed in 2023 alleging infringement of three UGG shoes based on trade dress and one design patent. The trade dress claims were dismissed before trial — the court concluded that a suede exterior, shearling lining, rounded toe, and thick sole don't qualify for trade dress protection because they're too common across the entire category. That left only the design patent on the Ultra Mini boot for the jury to decide.

At trial, Deckers' counsel framed the case as protecting intellectual property rights secured through the patent system. Quince's counsel countered that Deckers was trying to use a design patent to "claim a monopoly over an entire category of boots." The jury agreed with Quince — or at least agreed that the patent was invalid, which is effectively the same outcome.

Quince's CEO testified that the manufacturer had approached Quince with the style, which it was producing for multiple brands, and that Quince used UGG only as a "shorthand reference" for the type of product it was after. Whether or not you believe that framing, it was enough for the jury.

What this tells brands about design protection

Two lessons here that don't get said clearly enough.

Trade dress requires distinctiveness that you build, not just possess. The UGG boot is one of the most recognizable products in consumer fashion. Deckers couldn't establish trade dress protection for it — not because nobody recognizes it, but because the silhouette and features are too common across the category. Recognition alone isn't enough. The expert quoted in WWD put it plainly: "A product might have extensive sales and renown but still not have acquired that distinctiveness — either through concept or extended use, advertising, sales, and other metrics — that qualifies for trade dress protection."

The practical implication: if your product's design is built around features that are functional, widely used in the category, or common across competitors, trade dress protection is likely unavailable regardless of how famous your brand is. Build your brand identity around features that are genuinely ornamental, distinctive, and specific to you — and document that distinctiveness aggressively from the beginning.

Design patents are narrower than most brands assume. Design Patent No. D927,161 covered the specific ornamental appearance of the UGG Ultra Mini boot. The jury found it invalid — meaning the design was either too similar to prior designs already in the market, covered features that are functional rather than ornamental, or was otherwise unprotectable. The exact theory isn't in the public record because the verdict form didn't ask the jury to specify. But the outcome tells you that a design patent on a widely produced style of boot, in a category with decades of similar products, is a difficult patent to defend.

Design patents are most valuable when they protect genuinely novel ornamental features that don't appear in prior art and aren't shared across the category. They're not a substitute for trade dress, and they're not a monopoly on a silhouette.

The better long-term strategy is brand-building, not litigation. Quince's head of legal said exactly what most IP lawyers privately think about this case: "When companies use litigation to protect market position instead of competing on product, this is what happens." That's not a legal argument — it's a market argument. But it's the right one.

The creator brands and product businesses that hold up best against copycats are the ones where the customer relationship is with the brand, not just the object. When someone buys a dupe because they know it's a dupe and they don't care, the legal system can't fix that. What it can do is protect genuinely distinctive, registered, and documented IP — trademark on the name and logo, trade dress on features that are truly unique and source-identifying, design patents on specific novel ornamental elements, and copyright on original creative expression embedded in the product.

UGG the brand survived this verdict fine. UGG the design patent did not. Know which is which.

See you next time,

Hank

P.S. If someone forwarded this to you and you find it useful, subscribe at newsletter.creatoripacademy.com. No spam, no filler — just IP news that actually matters.

About Hank's IP Brew

Creator IP Academy helps creators understand and protect their intellectual property. Got a question? Reply to this email.