Fleischer Studios, Inc. v. A.V.E.L.A., Inc.
INTA Position: the U.S. Court of Appeals for the Ninth Circuit should rehear the case to correct two errors in the original panel's majority decision, namely: 1) the majority's application of the doctrine of aesthetic functionality, which is in conflict with another Ninth Circuit decision that substantially limited that doctrine; and 2) the majority's statement in dicta that when a copyrighted work falls into the public domain, the owner of a trademark comprised of that work can no longer assert trademark rights, which ignores precedent holding that the two areas of law protect against different wrongs
Outcome: Pending
Adidas AG et al. v Marca Mode et al.
INTA Position: The scope of protection of a registered trademark does not depend on a consideration of the "requirement of availability" (that is, the avaibility of marks to other traders)
Outcome: Consistent with INTA's position, the European Court of Justice held that infringement should be determined by analyzing likelihood of confusion, not by considering the "requirement of availability"
TrafFix Devices, Inc. v. Marketing Displays, Inc.
INTA Position: Whether or not a feature is addressed in a utility patent, it could nevertheless be eligible for protection when it otherwise meets the requirements for protection under the U.S. Lanham Act, which include non-functionality
Outcome: The U.S. Supreme Court agreed, holding that regardless of whether a product feature is the subject of an expired patent, trade dress protection can be asserted only in features that are not functional
Wal-Mart Stores, Inc. v. Samara Brothers, Inc.
INTA Position: For purposes of Lanham Act trade dress protection, nonfunctional aspects of a product’s design may be an inherently distinctive trade dress that is protectable without secondary meaning. The differing perceptions consumers attach to a product’s appearance, as opposed to packages and labels, should be considered
Outcome: The U.S. Supreme Court held that a product design can never be inherently distinctive, and therefore protectable, in an action for infringement of unregistered trade dress. The Court concurred with INTA that a different standard should be applied to products as opposed to packaging and designs