July 2011: Trademark and Copyright Litigation Update

Logos, Emblems, and Characters Find Trademark Protection Tenuous in Wake of Ninth Circuit Decision:

On February 23, 2011, the Ninth Circuit affirmed the grant of summary judgment against Fleischer Studios, which claimed ownership and infringement of the Betty Boop character under both copyright and trademark theories. Fleischer Studios v. A.V.E.L.A., Inc., 636 F.3d 1115 (9th Cir. 2011). While the copyright ruling is unlikely to have a broad impact beyond this case, the trademark ruling substantially restricts the scope of trademark protection, especially as to copyrightable works of authorship.

Max Fleischer first developed the Betty Boop cartoon character in 1930. The plaintiff, Fleischer Studios, claimed ownership of the copyright to the Betty Boop character through a chain of assignments. The district court found that a break in the chain of title meant that Fleischer Studios did not own the character and had no standing to sue for infringement of it. The Ninth Circuit affirmed, disposing of Fleischer’s copyright infringement claim.

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