[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[H.R. 10025 Introduced in House (IH)]
<DOC>
119th CONGRESS
2d Session
H. R. 10025
To amend the Trademark Act of 1946 to clarify the applicability of
Federal trademark law in the area of digital replicas of identifying
characteristics of individuals, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 3, 2026
Mr. Issa introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Trademark Act of 1946 to clarify the applicability of
Federal trademark law in the area of digital replicas of identifying
characteristics of individuals, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preventing Abuse of Digital Replicas
Act''.
SEC. 2. FINDINGS; SENSE OF CONGRESS.
(a) Findings.--Congress finds the following:
(1) Recent advances in artificial intelligence (AI)
technology, including generative AI technology, represent an
important opportunity for continued technological leadership by
the United States in a critical and emerging technology area.
(2) Leadership in AI development will be vital for the
United States economy and the competitiveness of American
businesses abroad, as well as for the national security of the
United States.
(3) Excessive regulation of AI technology development and
applications would hinder their advancement and place the
United States at a disadvantage compared to strategic
competitors, including the People's Republic of China.
(4) AI technology and its myriad applications are already
subject to numerous existing laws and regulations, including at
the Federal level, which should be considered when determining
whether further legislation or regulation is necessary.
(5) AI technology is already starting to transform numerous
industries, create new industries and markets, and contribute
to countless new products and services that benefit American
consumers and consumers abroad, including with respect to
health care, communications, transportation and mobility,
education, and entertainment.
(6) While AI technology will provide many benefits to
Americans, it also presents significant risks to individuals
and society in general, one of which is the abuse of
``deepfakes'' and other digital replicas.
(7) The internet is already plagued with countless
advertisements and other media using unauthorized, AI-generated
digital replicas of individuals to falsely imply those
individuals' endorsement of various products, services,
businesses, and other entities.
(8) Abusive use of an unauthorized digital replica to
fraudulently ascribe endorsement or other statements to a
person without his or her knowledge or consent can cause
tremendous distress and inflict serious harm on that person as
well as his or her reputation, dignity, and livelihood.
(9) False endorsements, advertisements, or other commercial
speech or promotion using unauthorized AI-generated digital
replicas can also cause substantial confusion and harm to
consumers, including by fraudulently inducing them to purchase
and use dangerous products that pose risks to their health and
safety based on the consumers' mistaken belief that a trusted
individual endorsed the products.
(10) Section 43 of the Trademark Act of 1946 already
provides a cause of action for the improper use in commerce of
a replica of a person's name, image, likeness, signature or
device, voice, logo, etc.
(11) Some individuals have encountered difficulties in some
jurisdictions in protecting their rights via section 43, such
as due to their lack of general fame or their lack of the
resources necessary to gather sufficient evidence of consumer
confusion, as may be required under the case law of certain
jurisdictions.
(12) Due to the seriousness of the potential harms and the
high risk of consumer confusion when the prohibited activity
involves the use of an identical or indistinguishable digital
replica of an individual's face or voice or other identifying
personal characteristics, the amendments to section 43 of the
Trademark Act of 1946 in this Act are necessary to provide
protection against such abuses throughout the country.
(b) Sense of Congress.--It is the sense of Congress that the
Trademark Act of 1946 should remain constrained to its historical
scope, prevent the improper recapture of works in the public domain,
and avoid conflicting with copyright laws that govern primarily
creative expression, including when aided by AI technology such as in
films depicting historical figures or music that samples preexisting
audio.
SEC. 3. APPLICABILITY OF FEDERAL TRADEMARK LAW IN THE AREA OF DIGITAL
REPLICAS OF IDENTIFYING CHARACTERISTICS OF INDIVIDUALS.
(a) In General.--Section 43(a) of the Trademark Act of 1946 (15
U.S.C. 1125) is amended by adding at the end the following:
``(4) In a civil action brought pursuant to paragraph
(1)(A), the court shall apply a rebuttable presumption that the
use is likely to cause confusion, or to cause mistakes, or to
deceive as to the affiliation, connection, or association of
such person with another person, or as to the origin,
sponsorship, or approval of his or her goods, services, or
commercial activities by another person, if--
``(A) the claim asserted under paragraph (1)(A) is
for a use of a digital replica by a person on or in
connection with any goods or services, or any container
for goods; and
``(B) the person bringing the civil action
expressly invokes the rebuttable presumption in a
pleading.
``(5) The rebuttable presumption in paragraph (4) shall not
be available in a civil action brought pursuant to paragraph
(1)(A) for the use of a digital replica on or in connection
with any goods or services, or any container for goods--
``(A) for any claim asserted under paragraph (1)(A)
for indirect liability;
``(B) if the use is in an expressive work or in
promotional material for that expressive work; or
``(C) if the use is otherwise protected by the
First Amendment to the Constitution of the United
States.
``(6) With the exception of relief sought under sections 32
and 43(c) of this Act, section 501 of title 17, and section 271
of title 35, a person may not seek relief under any other
provision of Federal, State, local, or municipal law for any
use of a digital replica for which the person files a civil
action asserting liability under this section and expressly
invokes the rebuttable presumption in paragraph (4) in a
pleading.
``(7) This subsection shall be considered a law pertaining
to intellectual property for the purposes of section 230(e) of
the Communications Act of 1934 (47 U.S.C. 230).
``(8) In this subsection--
``(A) the term `digital replica' means a computer-
generated representation that is identical to, or
substantially indistinguishable from, an identifying
characteristic of a subject person, who at the time of
the use of the representation is a living individual
human being, where--
``(i) the identifying characteristic is an
image, voice, or likeness of the subject
person, which is distinctive to the subject
person such that the use of such characteristic
is likely to be associated with the subject
person and no other person by reasonable and
ordinary participants in the relevant industry
or market; and
``(ii) based on the representation itself,
it is apparent to reasonable and ordinary
participants in the relevant industry or market
that the purpose of the representation, in
whole or in part, was to duplicate the
identifying characteristic of the subject
person; and
``(B) the term `relevant industry or market' means
the industry or market for the goods or services that
are the subject of the civil action brought pursuant to
paragraph (1)(A).''.
(b) Rule of Construction.--Nothing in this Act, or the amendments
made by this Act, may be construed so as to limit the scope of section
43 of the Trademark Act of 1946 (15 U.S.C. 1125) as such section
existed prior to the enactment of this Act.
(c) Application.--This Act, and the amendments made by this Act,
shall apply only to a civil action--
(1) brought pursuant to section 43(a) of the Trademark Act
of 1946 after the date of the enactment of this Act; and
(2) for the use of a digital replica on or in connection
with any goods or services, or any container for goods, after
the date of the enactment of this Act.
(d) Severability.--If any provision of this Act, or the application
thereof to any person or circumstance, is held invalid, the remainder
of the Act, and the application of such provision to other persons or
circumstances shall not be affected thereby.
(e) Definition.--In this section, the term ``Trademark Act of
1946'' means the Act entitled ``An Act to provide for the registration
and protection of trademarks used in commerce, to carry out the
provisions of certain international conventions, and for other
purposes'', approved July 5, 1946.
<all>