Boop-Oop-A-Doop: Ninth Circuit Withdraws Holding That Characters Do Not Function as Trademarks

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In an unexpected decision, the U.S. Court of Appeals for the Ninth Circuit issued an amended opinion in the closely watched case Fleischer Studios, Inc. v. A.V.E.L.A., Inc., No. 09-56317 (9th Cir. Aug. 19, 2011) involving trademark and copyright infringement of the cartoon character Betty Boop. This new opinion supersedes the original February 23, 2011 opinion that had been widely critiqued for its holding that the image of Betty Boop, as used by the defendants on t-shirts and handbags, was "aesthetically functional" and therefore not protectable as a trademark. Fleischer Studios filed a petition for rehearing or rehearing en banc of that opinion in April. The Ninth Circuit's amended opinion denies the petition as moot, and without any mention of aesthetic functionality, remands the trademark infringement claims to the district court.

Fleischer Studios, run by the family of Max Fleischer, the creator of the Betty Boop character, sued A.V.E.L.A. and others for copyright and trademark infringement for unauthorized use of the Betty Boop image on handbags and t-shirts. The district court granted summary judgment for the defendants on both claims.

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