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Trademark rights trump aesthetics

01-12-2011

Robert Kenney and Katie Peden

The US Court of Appeals for the Ninth Circuit’s decision in Fleischer Studios, Inc. v AVELA, Inc., had the potential to limit brand owners’ ability to protect their marks against third party merchandising and assert their rights in trademarks.

The US Court of Appeals for the Ninth Circuit’s February 23, 2011, decision in Fleischer Studios, Inc. v AVELA, Inc., had the potential to severely limit brand owners’ ability to protect their marks against third party merchandising and assert their rights in trademarks whose related copyrights had fallen into the public domain. On August 19, the court withdrew its February decision and filed a new opinion that avoids the potentially destructive consequences of the earlier ruling.

The case was brought by Fleischer Studios, which claimed ownership of copyright and trademark rights in the Betty Boop cartoon character, alleging infringement by AVELA, which licensed Betty Boop merchandise. Both the district court and the Ninth Circuit dismissed the copyright claims for lack of standing, but the grounds for dismissal of the trademark claims shifted on appeal with potentially far-reaching consequences for brand owners.

The Betty Boop character was created in 1930 by Max Fleischer of the Original Fleischer Studios, which sold all rights in its cartoon films and characters to Paramount Pictures in 1941. Plaintiff Fleischer traces its common law trademark rights to the continuous offering of merchandise bearing the Betty Boop image and name to the public since the early 1970s. Fleischer also submitted four federal registrations for the word mark “Betty Boop”.


aesthetics, trademark rights

WIPR

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