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is not using Betty Boop as a trademark, but instead as a functional product. Even a cursory examination, let alone a close one, of “the articles themselves, the defendant’s merchandising practices, and any evidence that consumers have actually inferred a connection between the defendant’s product and the trademark owner,” reveal that A.V.E.L.A. Job’s Daughters is directly applicable to Fleischer’s trademark claims. This was true even after the Supreme Court recognized that aesthetic functionality is one species of functionality (“It is true, of course, that the person seeking to exclude new entrants would have to establish the nonfunctionality of the design feature - a showing that may involve consideration of its esthetic appeal.” Wal-Mart Stores, Inc.

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It has been recited pro forma for decades that “n this circuit, the ‘aesthetic’ functionality test has been limited, if not rejected, in favor of the ‘utilitarian’ functionality test.” See Au-Tomotive Gold, Inc. Lo and behold, aesthetic functionality turns out to be alive and well in the 9th Circuit.

Then when we get to trademark, things go in a completely unexpected direction. So, a win by the defendants on procedure alone on the copyright infringement theory. I see nothing to be gained from encouraging litigants to protect against the waiver doctrine by asserting, pro forma, in their opening briefs any and all possible theories of victory, in the possible event that the opposing party will raise a completely new argument in its answering brief. Furthermore, after Defendants did advance a new argument, Plaintiff immediately retorted, in its reply brief, that even if the doctrine of indivisibility applied, Plaintiff prevails via the Harvey Films chain of title. That strategy makes particular sense because Defendants had never before advanced the argument made in their answering brief. Plaintiff thus challenged only the portion of the district court’s opinion in which Plaintiff lost. The district court had ruled in Plaintiff’s favor on every link in the UM&M chain except one. But its failure in that regard is perfectly understandable. First, it is true that Plaintiff did not raise the Harvey Films chain of title in its opening brief.

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