Law Commons^™

This article analyzes the original Ninth Circuit opinion in Fleisher Studios, Inc. v. A.V.E.L.A., Inc. in which the court provided a sua sponte discussion of the dispraised doctrine of aesthetic functionality in the context of the contemporary merchandising practices of trademark owners, which analysis was subsequently withdrawn in its entirety by the court six months later when it substituted its former opinion with a new holding on grounds other than aesthetic functionality. The article will begin with an explanation and history of the Lanham Trademark Act, focusing on its twin goals of protection against consumer confusion over the source of …