9th Circuit Court of Appeals Rules That Food Pun “Lettuce Turnip the Beet” on Clothing is Not Trademark Use

     The owner of an incontestable U.S. trademark registration for “LETTUCE TURNIP THE BEET” previously sued Redbubble Inc., an online print-on-demand webstore, for trademark infringement based upon its use of this phrase on t-shirts, tote bags, and other related goods.  The district court found in favor of Redbubble, ruling that consumers are not likely to purchase products and associate this phrase with a particular source; instead, consumers are likely to purchase goods with the “Lettuce Turnip the Beet” phrase because they find the phrase aesthetically pleasing.  The owner of the “LETTUCE TURNIP THE BEET” trademark registration appealed, but on January 20, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling, finding that the mark was functional because it “improves the usefulness or appeal of the object it adorns.”