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t. Citing McCarthy on Trademarks and Unfair Competition, Tiffany argued that the order which the court has to decide these issues is first and foremost, issues of validity and then likelihood of confusion. Once those are decided and a prima facie case is established does the court proceed to the defense of functionality. The court was also charged with dealing with preliminary injunction issues. D

Co., the US Court of Appeals for the Ninth Circuit Christian Louboutin Flatsapplied the aesthetic functionality doctrine and found that the defendant was entitled to copy the plaintiff's china designs, since the attractiveness of the design was the primary selling feature of the china and thereby served a non-trademark function. However, the Second Circuit specifically rejected the Pagliero test for aesthetic functionalit

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