The Trademark Reporter®
Global Trademark Resources

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.
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.
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