Global Trademark Resources Print Page Page Image Current IssueArticle ArchiveTMR Search July-August, 2011 Vol. 101 No. 4 Back to TMR Main Page Amicus Brief of the International Trademark Association in Fleischer Studios, Inc. v. A.V.E.L.A., Inc. By John W. Crittenden, Counsel for Amicus Curiae, INTA 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: The U.S. Court of Appeals for the Ninth Circuit panel withdrew the portions of its original opinion that INTA had identified as in error and issued a new opinion that made no mention of 1) the doctrine of aesthetic functionality; or 2) the status of trademark rights with respect to copyrighted works that have fallen into the public domain. The Trademark Reporter is available to INTA members only. Please go to Member Login at the top of this screen to access the full article.