A Trademark May—or May Not—be Aesthetically Functional

When one party's trademark is used ornamentally on another party's product, that use may be protected by the aesthetic functionality defense, or that use may be a trademark infringement. But how do you know?

LTTB LLC owned four U.S. trademark and service mark registrations, two of which had become incontestable, of the pun LETTUCE TURNIP THE BEET for tote bags, t-shirts and other goods and services. It displayed this phrase across the front of the items, and also on hangtags or labels affixed to them. LTTB sued an Australian online retailer named Redbubble, Inc. for selling similar products displaying the same phrase. Redbubble's defense was that its use of this phrase was protected by the doctrine of aesthetic functionality.