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July-August, 2011 Vol. 101 No. 4 Back to TMR Main Page
Mere Ornamentation and Aesthetic Functionality: Causing Confusion in the Betty Boop Case?

NOTE: This article went to press prior to the Ninth Circuit’s ruling on August 22, 2011, which vacated the aesthetic functionality holding discussed in this article.


    The Ninth Circuit Court of Appeals issued a decision on February 23, 2011, in Fleischer Studios, Inc. v. A.V.E.L.A., Inc.1 (the “Betty Boop” case), wherein it held there was no trademark infringement because the defendant’s use of the name and image of the cartoon character Betty Boop was not “use” in the manner of a trademark. In an unusual application of the doctrine of aesthetic functionality, the court found that even assuming that the plaintiff had established trademark rights in the name and image, the defendant’s unauthorized use of them did not infringe because consumers purchased the defendant’s goods merely because they liked Betty Boop, not because they attributed any source-indicating significance to the name or image. Although federal registrations for the character image were not in evidence in the Betty Boop case, the broad language of the Ninth Circuit’s decision raises the alarming specter that a valid registered trademark, which necessarily is deemed to be perceived by consumers as a source indicator, may be subject to unauthorized use by third parties if the trademarked name or image has some intrinsic value to consumers separate and apart from its source-identifying function. Because the statutory presumption of validity afforded marks registered by the United States Patent and Trademark Office (USPTO) is an important part of the trademark system, any doctrine that effectively disregards the presumption is highly problematic.
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