Amicus Brief

Fleischer Studios, Inc. v. A.V.E.L.A., Inc.

Published: March 22, 2011


U.S. Court of Appeals for the Ninth Circuit

Our Position

The court 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.


The 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.