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P's GRANDE BAROQUE pattern was introduced in 1941 and is still one of the best-selling silverware lines in America. P owns a trademark registration for the GRANDE BAROQUE name as applied to sterling silver flatware and hollowware. The GRANDE BAROQUE design is not patented. On December 11, 1989, P filed an application for trademark registration for the GRANDE BAROQUE pattern. D has recently begun to market a line of baroque-style silver-plated serving pieces. The new line was advertised under the name 20TH CENTURY BAROQUE. D was going to introduce the line at the biggest trade show in New York. D's pattern contains typical baroque elements including an indented root, scrolls, curls, and flowers. The arrangement of these elements approximates P's design in many ways, although their dimensions are noticeably different. D's pattern extends further down the handle than P's does. D admits that its designers were 'certainly inspired by and aware of P's design. P learned of the design when a customer called P because he could not understand why P licensed his brand to another company. P filed the complaint in the instant matter stating various federal trademark and state unfair competition claims. The judge concluded that the GRANDE BAROQUE design was a 'functional' feature of baroque-style silverware and thus ineligible for trade dress protection under Section 43(a) of the Lanham Act. The judge held that all the 'Baroque' style silverware use essentially the same scrolls and flowers as a way to compete in the free market. The 'Baroque' curls, roots, and flowers are not 'mere indicia of source.' Instead, they are requirements to compete in the silverware market. The declined to order expedited discovery and denied P's motion for a preliminary injunction. P appealed.

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