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When the aesthetic development of the good is intended to enhance the design and make the product more commercially desirable, trademark protection may be denied because the consumer is drawn to the design. The distinctiveness of the mark serves to identify the product rather than the source, and trademark protection becomes inappropriate. The underlying theory as aesthetics become integrated with functionality, the resulting product strongly resembles product design, which may receive no trademark protection absent secondary meaning.<ref>Christian Louboutin S.A. v. Yves Saint Laurent America, Inc., 778 F. Supp. 2d 445, 447–48 (S.D.N.Y. 2011)</ref>
This defense is generally seen in the fashion industry. Clothing brands can only be protected if they've acquired secondary meaning, and most of clothing design is held to be functional and is afforded no protection.<ref>{{Cite web|url=https://supreme.justia.com/cases/federal/us/529/205/|title = Wal-Mart Stores, Inc. V. Samara Brothers, Inc., 529 U.S. 205 (2000)}}</ref>
==See also==
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