Civil Litigation,
Intellectual Property,
9th U.S. Circuit Court of Appeals
Jul. 26, 2013
Revived trademark doctrine creates uncertainty for entertainment brands
The 9th Circuit was the first to invoke "aesthetic functionality" in denying trademark protection. Over the years, the doctrine was heavily criticized and eventually fell to the wayside - until now.
Andrew J. Thomas
Partner
Jenner & Block LLP
Phone: (213) 239-5100
Email: ajthomas@jenner.com
Harvard Univ Law School; Cambridge MA
Andrew represents content owners in copyright, trademark and First Amendment matters. CONTENT MATTERS is a monthly column devoted to matters of interest to those who create content of all kinds (entertainment, news, software, advertising, etc.) and bring that content to market. Our hope is to shed light on key issues facing the creative content community. If you have questions, comments or topic ideas, let us know. Because content matters.
CONTENT MATTERS
Does a shoe manufacturer have rights in the distinctive color of its soles? Can the owner of trademark rights in a cartoon character prevent another party from selling merchandise featuring that character? Courts recently have analyzed these questions through the lens of a rejuvenated "aesthetic functionality" doctrine - once a moribund corner of the law.
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