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David E. Fink

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David Fink is an experienced and proven commercial litigator at both the trial and appellate court levels. With more than two decades of experience in state and federal litigation and in alternative dispute resolution, David has prosecuted and defended complex claims involving hundreds of millions of dollars. His vast experience in the media and entertainment industry includes defamation and privacy claims, right of likeness, copyright, trademark, guild-related issues, and profits participation.

David has been listed as a Recognized Practitioner in Chambers USA, featured in The Best Lawyers in America, and acknowledged as a Local Litigation Star in Benchmark Litigation.

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Lettuce Turnip the Beet: When puns are “functional”

In LTTB LLC v. Redbubble, Inc., plaintiff LTTB, an online apparel company, contended its success was “largely due to public fascination with its Lettuce Turnip the Beet trademark,” and alleged that defendant Redbubble’s sale of products featuring the phrase “Lettuce Turnip the Beet” infringed its mark, 18-cv-00509-RS. Redbubble, an online marketplace selling products made by independent artists, argued that LTTB was not entitled to preclude others from using the “Lettuce Turnip the Beet” pun absent any evidence of source confusion. On July 12, 2019, the Northern District of California issued its decision granting summary judgment in favor of defendant Redbubble, finding that LTTB did not have an exclusive right to sell products displaying the pun “Lettuce Turnip the Beet,” and that LTTB therefore did not have a viable trademark infringement claim.

The court’s decision turned on its application of the “aesthetic functionality doctrine,” a controversial trademark law principle unevenly applied by federal courts. See McCarthy on Trademarks and Unfair Competition § 7:80 (5th ed.). Under the aesthetic functionality doctrine, when goods are bought largely for their aesthetic value, their features may be functional – if a feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. See Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir. 1952). The issue in LTTB was whether LTTB had a viable infringement claim where the alleged infringing products merely displayed the pun “Lettuce Turnip the Beet” and did not otherwise include any indication that they were produced by LTTB. In other words, was the pun “Lettuce Turnip the Beet” a functional feature permitting imitation? The LTTB court explained that while the Ninth Circuit’s modern application of the “aesthetic functionality” doctrine has been more limited, the circumstances of the LTTB case “undeniably” called for the application of the aesthetic functionality doctrine.Continue Reading We Got The Beet: Trademark Claims and Puns