Trademark Rights Trump Aesthetics

Robert J. Kenney & Katherine M. Peden for World Intellectual Property Review

The US Court of Appeals for the Ninth Circuit’s February 23, 2011, decision in Fleischer Studios, Inc. v AVELA, Inc., had the potential to severely limit brand owners’ ability to protect their marks against third party merchandising and assert their rights in trademarks whose related copyrights had fallen into the public domain. On August 19, the court withdrew its February decision and filed a new opinion that avoids the potentially destructive consequences of the earlier ruling.

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