This article analyzes the original Ninth Circuit opinion in Fleisher Studios, Inc. v. A.V.E.L.A., Inc. in which the court provided a sua sponte discussion of the dispraised doctrine of aesthetic functionality in the context of the contemporary merchandising practices of trademark owners, which analysis was subsequently withdrawn in its entirety by the court six months later when it substituted its former opinion with a new holding on grounds other than aesthetic functionality. The article will begin with an explanation and history of the Lanham Trademark Act, focusing on its twin goals of protection against consumer confusion over the source of goods in the marketplace, as well as the promise offered to producers of goods to secure the goodwill associated with such products.

It will then explore the history and development of trademark licensing, particularly focusing on the contemporary phenomenon of brand evolution or trademark merchandising, which caters to the fulfillment of consumer connection, affiliation, and overall “experience” with valued materialistic commodities, which I term the “bling-bling” factor.

The article will then trace the history of court opinions that have interpreted aesthetic functionality and other provisions in the Lanham Act in conjunction with the evolving practice of trademark licensing, particularly critiquing the first Fleisher Studios opinion for reinstating the doctrine and arguing that it: (1) fails to account for protecting the needs of contemporary consumption; (2) thwarts the incentive of trademark owners to develop goodwill in branding practices; and (3) discounts to an unacceptable degree the phenomenon of rampant, unauthorized third-party use of marks by neglecting to distinguish a competitor from a free rider in the marketplace.

Finally, the article will conclude with a plea to all circuits and the Supreme Court to extinguish the aesthetic functionality doctrine by showing that it is not a rational extension of the traditional principle of utilitarian functionality originally conceived by the drafters of the Lanham Act.