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Jessica Tuquero
Manager, Communications
  Erred Decision on Betty Boop Case May Have Serious Implications on Trademark Law

New York, NY—March 29, 2011—The International Trademark Association (INTA) requests that the U.S. Court of Appeals for the Ninth Circuit rehear Fleischer Studios, Inc. v. A.V.E.L.A., Inc. The Court recently ruled that Fleischer, which claims ownership of the Betty Boop trademark, cannot assert a trademark infringement action against A.V.E.L.A.  A.V.E.L.A. produced T-shirts, handbags and other products that displayed the image of Betty Boop.

In an amicus brief submitted to the Court, INTA argues that the decision erred in two fundamental ways. First, the decision applied the doctrine of “aesthetic functionality,” which would allow competitors to copy others' trademarks because the marks are attractive. The court’s reliance on aesthetic functionality places its decision in conflict with a later Ninth Circuit decision that imposed substantial limits on that doctrine.

"The Court improperly resurrected the concept of ‘aesthetically functionality.’ Such a rule would destroy brand value and cause widespread confusion among consumers,” said David H. Bernstein, Chair of INTA’s U.S. Amicus Subcommittee of the International Amicus Committee.  

The Court also said that Fleischer could not bring a trademark infringement action because in this case, such an action was essentially a substitute for a copyright infringement action. However, that view ignores the fact that trademark law and copyright law are different doctrines that protect different types of intellectual property.

“If the majority’s opinion stands uncorrected, it will have far-reaching consequences for brand owners and consumers alike, undermining settled precedent, and upsetting the balance between trademark and copyright law,” said Mr. Bernstein.

Read more about INTA’s views on Fleischer Studios, Inc. v. A.V.E.L.A., Inc.