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Professors debate functionality

Annual Meeting attendees flocked to a bustling session about recent developments relating to the doctrine of trademark functionality yesterday

The panel included Professors Mark Lemley of Stanford Law School, Dan Burke of the University of California, Irvine School of Law and Eric Goldman of Santa Clara University School of Law.
Moderator Susan Montgomery of Northeastern University focused on two key cases—Rosetta Stone v. Google and Fleischer Studios Inc. v. A.V.E.L.A—in which two separate courts ruled in part that the trademarks at issue in each case were functional, and therefore unprotectable.
Both cases are on appeal and being closely watched by INTA (which has filed amicus briefs in each case) and the trademark community. “Betty Boop is outrageous and will spell the death knell for trademarks [if not reversed],” said one audience member.
The panel of professors disagreed and said that the case law is not clear that trademark rights guarantee a merchandising right, which generated lively commentary from the audience.      

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