After the CLARITY Act: Building IP Strategy for a Fragmented Digital Asset Regulatory Environment

October 2026 opened with a defining theme: after the Senate blocked the CLARITY Act, the US Securities and Exchange Commission and Commodity Futures Trading Commission are moving to fill the regulatory gap on their own, from the SEC’s proposed Regulation Crypto Assets to updated CFTC guidance on tokenized investments — and where agency action reaches its limits, courts and state regulators are filling in. 

For brands, founders, and IP practitioners operating in digital assets, this fragmented regulatory environment creates a specific challenge: how do you build an IP strategy that remains sound when the regulatory framework above it is uncertain, multi-jurisdictional, and subject to change without Congressional action?

The Multi-Agency Reality

The post-CLARITY Act environment means that digital asset businesses now face concurrent oversight from multiple federal agencies, each developing its own frameworks on its own timeline.

The CFTC published an advance notice of proposed rulemaking titled “Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets,” which cleared the OMB. CFTC Chairman Michael Selig addressed blockchain regulation at the Fordham Law Blockchain Regulatory Symposium on October 5. 

The SEC issued a proposed rule aimed at modernizing the federal custody framework for digital assets held by registered investment advisers and regulated funds — acknowledging that for certain crypto assets, qualified custodians may not be readily available, and proposing to permit RIAs and regulated funds to use state trust companies as custodians for crypto assets.

These two agencies are developing frameworks that will ultimately need to coexist — but currently operate independently, creating a compliance environment where digital asset businesses must navigate multiple frameworks simultaneously.

What Regulatory-Portable IP Structure Looks Like

The IP strategy appropriate for this environment is not one designed for a specific regulatory classification. It is one designed to function across the range of classifications that the multi-agency environment might produce.

Trademark protection needs to cover the brand across the categories relevant to both securities and commodity frameworks — financial services, digital assets, payment services, investment products — rather than being optimized for a single anticipated classification. The trademark portfolio of a digital asset business that anticipated CLARITY Act passage needs to be reviewed against the multi-agency framework that has emerged instead.

IP ownership documentation needs to meet the due diligence standards of both SEC-supervised investment processes and CFTC-supervised commodity transactions. These standards have different emphases — SEC due diligence focuses on securities law compliance and investor protection frameworks; CFTC-supervised transactions emphasize commodity market integrity and customer protection. Clean IP ownership documentation satisfies both, because institutional-grade documentation is institutional-grade regardless of which regulatory framework applies.

Licensing agreements for digital asset products need to be drafted without dependence on a specific regulatory classification for their operative provisions. A licensing agreement that only works if the digital asset is classified as a commodity creates significant risk if the SEC asserts jurisdiction. Regulatory-neutral drafting is a specific skill — and one that the post-CLARITY Act environment makes essential rather than optional.

The State-Level Dimension

Florida’s Payment Stablecoin Issuer Law took effect October 1, built to the GENIUS Act template. State-level stablecoin regulation is now active — which means digital asset businesses need IP strategies that cover state regulatory frameworks alongside federal ones. 

On October 13, the Illinois Digital Asset Tax Act’s implementation was delayed until July 1, 2027, while constitutional challenges proceed. The Illinois tax litigation illustrates a broader pattern: state-level digital asset legislation is proliferating faster than the legal frameworks for challenging it, and businesses operating across state lines face a compliance complexity that requires IP structures capable of adapting to state-specific requirements.

The International Dimension

On October 8, UK and EU regulators addressed tokenization, illiquid assets, and stablecoins — coordinating their approach across two of the world’s largest financial markets. For brands with international presence, the multi-agency US environment is one layer of a multi-jurisdictional global picture.

The brands that navigate this environment successfully treat IP strategy as a global architecture question — not a jurisdiction-specific compliance exercise. Trademark registrations, IP ownership documentation, and licensing frameworks need to be designed with the full regulatory geography of the business in view.

At Name & Fame, we specialize in building IP strategies for exactly this environment: multi-jurisdictional, multi-agency, and regulatory-portable. The post-CLARITY Act landscape is the environment our clients operate in — and we build IP structures designed for it.

📩 Contact us at namefame.us