On 12 May 2025, the EUIPO released a detailed study analysing how generative AI (GenAI) impacts EU copyright law. Gabriele Engels, Chair of the MARQUES Cyberspace Team, explains more.

The study focuses on three areas: the use of copyrighted content as training data by GenAI models (GenAI input), the legal status of AI-generated content (GenAI output) and the broader implications for rights holders, AI developers and the copyright ecosystem.

Although designed for legal experts and policymakers, the findings are significant for tech companies, creators, platforms and rights holders. As companies adopt GenAI on a growing scale, legal and commercial questions around data use, authorship, licensing and enforcement are in urgent need of clear answers.

To help these stakeholders, EUIPO plans to launch a Copyright Knowledge Centre in November 2025, aimed at supporting rights holders to manage the use of their works, inform EU policymakers and tackling key challenges.

GenAI inputs

AI models need vast amounts of data to train their algorithms. This is often collected through web crawling or scraping practices that may involve copyright-protected material. As a result, many of the measures used by copyright holders to control access to their works focus on combating this practice.

Legal background

Under the EU’s Copyright in the Digital Single Market Directive (DSM Directive), text and data mining (TDM), which is the reproduction of content for training purposes, is allowed in specific circumstances.

In this context, Article 4 of the DSM Directive provides for the rights holders ability to “opt out” of TDM by clearly stating their objection, and thereby reserving their exclusive copyrights. For this opt out to be valid, the reservation must be made expressly, by the rights holder and in an appropriate manner, including “machine-readable means” for content made publicly available online. In case of such an opt out, developers must obtain an authorisation by the right holder, usually a licence agreement, before using the content.

The EU’s Artificial Intelligence Act (EU AI Act) adds that GenAI providers must respect TDM opt-outs by copyright holders and disclose sufficiently detailed summaries of the training data they utilise. It also requires AI-generated content to be detectable in a machine-readable format.

Rights reservations

Robots Exclusion Protocol (REP) is a technical tool that website owners use to express their rights reservations and manage web crawling and scraping activities. However, there is a consensus amongst stakeholders that REP doesn’t meet the DSM-Directive’s standards for expressing copyright opt-outs in an appropriate manner.

It is seen as an incomplete and temporary solution due to its voluntary nature: it has to be complied with by scrapers, which undermines its enforceability as a technical safeguard.

A widely acknowledged limitation is REP’s inherent lack of granularity and specificity regarding permitted uses. It requires website managers to actively configure and maintain restrictions, making implementation inconsistent across different sites.

No opt-out standard

No opt-out mechanism has emerged as a standard for rights holders to express their TDM rights reservations. Copyright holders use a mix of various legal measures (unilateral declarations, licensing constraints, website terms and conditions) and technical measures (metadata and content provenance protocols).

Legally driven measures are typically applied to specific copyright-protected works, but also entire repertoires of works. Technically driven measures are categorised as either location-based (i.e. applied to a specific copy of a digital asset as hosted in a particular location) or asset-based (i.e. applied to the digital asset more broadly and replicated in every copy of that asset).

Both approaches have their distinct advantages and limitations and rights owners often use a combination of measures.

However, these methods appear to give rights owners only the possibility to express their rights and not to enforce them. AI developers are responsible for respecting these choices and configure their tools accordingly. The study anticipates the development of sector-specific standard practices.

GenAI outputs

The study further explores legal concerns around AI-generated content, noting that output depends on the type of GenAI model and content type created. New tools such as watermarking and digital fingerprinting are helping identify synthetic content produced by GenAI systems and meet transparency requirements under the EU AI Act.

Standard technologies

There is a trend of increased deployment of Retrieval-Augmented Generation (RAG) technologies that combine GenAI with real-time data retrieval, often from copyrighted sources.

While RAG boosts the relevance and efficiency of the data drawn, it introduces legal uncertainty, especially around licensing and database rights, since it differs from traditional training covered by TDM rules. This is particularly the case if dynamic content is read via web scraping.

Technical and legal measures

Developers are adopting technical fixes to reduce the risk of copyright infringement in AI-generated content. These include:

• Tools for comparing generated content with potential input sources
• Filters to prevent duplicate outputs
• Prompt rewriting and negative prompting
• Differential privacy to prevent models from memorizing data
• Post-training tools such as “model editing” and “model unlearning” to remove or alter specific content

Prompt rewriting changes user inputs to prevent generating near duplicate outputs, while negative prompting also specifies to the model which elements should be excluded from the generation, such as key features associated with copyright-protected characters.

Some providers even offer some form of legal indemnification to users, reflecting the growing awareness of potential legal risks.

In this context it is noted that public bodies can help to mitigate potential infringing outputs and detect synthetic content by providing technical support and raising awareness on technical standards, promoting ethical AI use and support the interoperability of output transparency measures across platforms and GenAI systems. A joint approach – legal, technical, and institutional – is key to managing the risks of GenAI output.

Evolving direct licensing market

The study identifies a new market which is forming for direct licensing of copyright-protected content for AI training, driven by demand for high-quality datasets and concerns over future data availability. Press, scientific and academic publishing are early movers.

This market is enabled by the Article 4 DSM Directive opt-out mechanism, making it a copyright infringement for AI developers to use opted-out works that may be available for license.

A functioning licensing system requires strong opt-out mechanisms, which can provide new income streams for rights holders. This also creates a market for technical solutions for managing access to content (particularly in online settings) and administering TDM rights reservations.

The study further lists several key considerations that may affect the evolution of licensing practices. They will depend on benchmark market rates, metrics used for remuneration, legal frameworks for remuneration and compensation models.

Conclusion

Navigating the interaction of GenAI and copyright will require coordinated and forward-looking action. The study calls for technical standards, policy tools and collaboration to keep copyright law able to address the implications of large-scale AI adoption.

Institutions such as the EUIPO can support this through guidance, databases, and awareness initiatives.

The upcoming Copyright Knowledge Centre is a step toward that goal, but long-term success depends on continued cooperation among GenAI developers, policymakers and rights holders, in order to (re-)establish a balance between the creative and IT industries.

Gabriele Engels is a Partner with D Young & Co in Munich and Chair of the MARQUES Cyberspace Team

WIPO has published the Madrid System Yearly Review, which includes facts and figures on use of the System in 2024.

Key points are:

• About 65,000 international trademark applications were filed during the year (+1.2%) and about 452,889 designations (+1.1%)
• A total of 915,034 international trademark registrations were in force (+2.7%) with 7,325,670 designations
• For the fourth consecutive year, the UK received the most designations (28,877)
• The US topped the list of users, with US applicants filing 11,270 international applications (+2.5%) followed by those from Germany (6,449) and China (5,828)
• For the fourth year in a row, L’Oréal was the top filer (244 applications) followed by Novartis (193) and Euro Games Technology (141)
• Class 9 accounted for 10.8% of all classes of goods and services specified in applications. Classes 35, 42 and 41 were also very popular

Read more on WIPO’s website, from where the image is taken. The Madrid Yearly Review 2025 is available to download in English as a PDF and the data can be downloaded in XLS format.

Members of the MARQUES Cyberspace Team hosted a webinar on “Evolving Challenges and Infringements on Social Media” on 4 June.

This is the third time the Team has hosted a webinar on this topic, with the previous ones in 2012 and 2014.

Since then, said Luca Barbero, Barbero & Associates Ltd, UK, there has been a sharp increase in the misuse of signs online and in the use of social media for fraudulent activities.

The speakers tackled four key topics.

Four timely topics

Luca discussed fake promotions via questionnaires which promise branded products as prizes, using examples such as BARILLA pasta and GUCCI bags. These are seen in particular on Facebook, but Luca said Meta has been “extremely reactive” to takedown requests, often removing listings in a matter of minutes after a complaint is filed.

Kate Coffey, Zurich Insurance Company Ltd Switzerland presented on investment scams, which target the insurance and financial sectors. She said they have to be treated “case-by-case” and added: “There are no perfect solutions.”

These investment scams are often designed to go viral which means they can escalate very quickly and the victims also become promoters of the scam. The scammers frequently use brand names and logos to provide a badge of legitimacy.

“It can be very difficult to monitor and trace these documents,” said Kate, who stressed the importance of regular monitoring activity and reporting to platforms.

In his presentation, Daniel Greenberg, Lexsynergy Limited, UK, focused on impersonator scams, where fraudsters pretend to be company directors, partners, Board members etc. Often, they use fake email addresses to ask employees to buy gift cards or other items.

The scam is difficult to monitor as the communications are not public, and they are designed to prompt people to act urgently. Also, said Daniel: “Thanks to AI, the spelling and grammar in the messages is much better than it used to be”. So it is hard to tell they are scams.

Impersonator scams do not fit easily into social media reporting tools. It is therefore important to use whatever resources are available, for example asserting copyright in individuals’ photos that are used.

Finally, Linnea Harnesk, Autoliv AB, Sweden discussed changes in enforcement on X (formerly Twitter) since Elon Musk took it over in 2022. She highlighted challenges including verified accounts impersonating brands, fake promotions, the misuse of brand names in handles and hashtags and screenshot virality.

“Takedowns have become slower and less predictable since 2022,” said Linnea. But she emphasised that trade mark and copyright reporting still exists and it is possible to file trade mark infringement claims, send warning letters, obtain injunctions and initiate actions under the EU Digital Services Act and US FTC.

Closing the discussion, Luca promised it would not be another 11 years until the next webinar on this topic!

The revised Rules of Procedure of the EUIPO Boards of Appeal entered into force on 1 June 2025.

The Rules have been updated to reflect the changes that came into effect in the first phase of the Design Legal Reform on 1 May 2025.

Article 23

Article 23 of the Rules of Procedure concerning written observations by interested parties in proceedings before the Grand Board has also been amended to make it easier for interested groups or bodies to submit written observations in Grand Board cases.

Following the amendment of Article 23 of the Rules of Procedure, written observations can now be submitted in any of the official languages of the EU.

Where these are submitted in a language of the Office, which is not the language of the proceedings, the Grand Board will provide a translation into the language of the proceedings upon a reasoned request by the parties within one month.

Where the written observations are submitted in an official language of the EU which is neither the language of the proceedings nor a language of the Office, the Registrar shall invite the interested groups or bodies to submit a translation into the language of the proceedings within one month.

The revised Rules of Procedure are available online in English and will be translated into the other four Office working languages of EUIPO. For ease of reference, a version with changes highlighted has also been published.

If you have any questions, please contact a member of the MARQUES European Trade Mark Law and Practice Team.

From today (2 June), parties involved in any inter partes proceedings before EUIPO can request mediation to solve their dispute.

The EUIPO Mediation Centre offers services including mediation and conciliation which are voluntary, free of charge and can be carried out securely online.

The Centre was launched in November 2023. As of today, it can handle first or second instance EUTM opposition and cancellation proceedings and EUD invalidity proceedings.

While pending disputes must concern EUTMs and/or registered EUDs, ADR also allows the inclusion of parallel conflicts involving the same parties and other IP rights or other disputes.

Under the Office’s Strategic Plan 2030, new ADR services will be explored, potentially including mediation for GIs for craft and industrial products and copyright.

A Mediation Stakeholders Network has also been set up to bring together stakeholders from IP user associations and other groups.

EUIPO is hosting the fifth IP Mediation Conference on 16-17 October 2025 in Malta.

Find out more on EUIPO’s website here. Photo of EUIPO taken from the Office's website.

Class 46 readers may be interested to know that three new EUIPO Boards of Appeal case-law reports have been published:

• Descriptiveness of names of colours
• Similarity between pharmaceuticals and cosmetics
• Component parts of complex products (Article 4(2) and (3) EUDR)

The reports are used by the Boards to identify case-law trends, develop a common understanding of relevant legal issues and support consistency. They are also used by EUIPO as a basis for discussion of Common Practices with IP Offices and User Associations to harmonise practices and standards.

More information is available on the Boards of Appeal case-law research reports page on the EUIPO website. Ideas for future topics for reports or other feedback can be sent to the Boards using the following email address: BoACooperation@euipo.europa.eu.

WIPO has unveiled a new version of eMadrid, which is now available in a beta environment.

New features include: Centralized hub; Integrated workbench; Collaboration features; Real-time updates and prompts; and Built-in guidance.

eMadrid (beta) is a live environment, with real trade mark data, and is running in parallel with current eMadrid webpages. It can be used for all Madrid System transactions via a WIPO account.

Users should use the English version for the best experience, as the French and Spanish versions are not yet fully translated.

eMadrid (beta) was launched on 20 May, during the INTA Annual Meeting in San Diego, California.

More information about the new features, as well as how to provide feedback, can be found on WIPO’s website here.

WIPO is also hosting two webinars, both in English, which will provide a guide to eMadrid (beta). They are on 28 May at 9.00 Geneva time and 3 June at 16.30 Geneva time. Further webinars will be announced soon.