Copyright holders and subsequent trademark holders rejoice. Last week, the 9th Circuit backpedaled on a recent decision that had many worried. In February, the 9th Circuit held in Fleisher v. A.V.E.L.A. that the defendant had not infringed on the rights of the owners of the Betty Boop trademark since the defendant had used it as an aesthetic component and not an indication of source. Stacy Lay, of Hendricks and Lewis summed it up nicely, stating:
The Ninth Circuit also affirmed the District Court’s decision dismissing Plaintiff Fleischer’s trademark infringement claim (District Court’s opinion can be found here) concluding that Defendant A.V.E.L.A. was using Betty Boop as a functional aesthetic component of the products, not as a trademark. The Ninth Circuit further concluded that allowing Plaintiff Fleischer to assert a trademark infringement claim would run afoul of the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), by preventing the Betty Boop character from ever entering the public domain.
On an “En Banc” hearing, the Court withdrew its holding on the aesthetic use, remanding to the District Court by limiting itself to the burden of proof in the summary judgment motion. The question is… will the ghost of International Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912 (9th Cir. 1980) come back?
Read the opinion and chime in!
