Dyan Finguerra-DuCharme, co-chair of the firm's Trademark Practice, spoke with Bloomberg Law's Kyle Jahner around the Ninth Circuit's controversial interpretation of the aesthetic functionality doctrine in trademark law.

The issue at play concerned LTTB LLC's registered "Lettuce Turnip the Beet" T-shirt trademark, where the decision rendered did not ultimately permit LTTB to block the use of the trademark on other T-shirts- a decision that divided experts across the country.

As the article notes,

'Analysis reaching either outcome—that LTTB can protect its mark despite consumers not yet recognizing it, or that the mark is aesthetically functional and thus unprotectable—could result in problematic law, trademark attorney Dyan Finguerra-DuCharme of Pryor Cashman LLP said.

But court's method of considering the "amorphous area" of aesthetic functionality and its result cut against trademark rights, she said.

"I do think it does run afoul on a lot of principles in ways that are just fundamentally problematic," Finguerra-DuCharme said. "You can't just take someone's trademark and put it on a shirt and say 'I'm not liable because it's ornamental use.' That just turns everything on its head."'

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