Betty Boop amici: aesthetic functionality could be ruinous
INTA and other interested parties have requested that the US Court of Appeals for the Ninth Circuit rehears a trademark and copyright infringement complaint involving cartoon character Betty Boop.
The Motion Picture Association of America, licensing arms of major US sports leagues, and the Edgar Rice Burrows Corporation, the company responsible for licensing the Tarzan literary works, have also filed amicus briefs in support of a rehearing.
They say that the US Court of Appeals for the Ninth Circuit has incorrectly resurrected the ‘aesthetic functionality’ doctrine.
Merchandisers Fleischer Studios and Avela are clashing over ownership of the Betty Boop copyright and trademarks. Both companies license Betty Boop rights for merchandise such as toys, dolls and clothing.
The US District Court for the Central District of California dismissed Fleischer Studio’s complaint, and the US Court of Appeals affirmed that decision on February 23.
INTA said that the US Court of Appeals incorrectly concluded that Avela “is not using Betty Boop as a trademark, but instead as a functional product”.
In its amicus brief, INTA said: “[The] majority erred by...reincarnating the outdated and much-criticized aesthetic functionality doctrine...In so doing, the majority essentially overruled Au-Tomotive Gold, Inc. v. Volkswagen of America, Inc...in which this Court substantially limited the aesthetic functionality doctrine.”
David Bernstein, a partner at Debevoise & Plimpton LLP and chair of INTA’s US Amicus Subcommittee of the International Amicus Committee, said: “What the Court of Appeals essentially held is that the images on the T-shirts and handbags are not being used to indicate a source or a brand. Instead, the images are aesthetically pleasing—they’re being used because they look nice.”
He added: “That reasoning is very troubling. If it is carried to its logical extreme, the aesthetic functionality doctrine could swallow up trademark law—it could allow anyone to take virtually any trademark, slap it on other items, and say this isn’t indicating another source, it just looks nice.”
Avela has been given until May 4 to respond to the petition for a rehearing.
