Yes, Your Honors!

This development in the Betty Boop IP squabble is something else I should have written about last year, but, really, there was this whole year of things in 2011 …  so luckily there’s Richard Bergovoy, who recently reminded us:

Like a hero rescuing a damsel in distress, the federal Ninth Circuit Court of Appeals granted a happy ending to the brand licensing industry in the controversial Betty Boop trademark case.

After its original opinion in Fleischer Studios, Inc. v. A.V.E.L.A., Inc. appeared to not only reverse settled case law, but also undercut the foundations of the brand licensing industry, the Ninth Circuit withdrew the opinion and replaced it with one that omits the controversial ruling.

The court’s original ruling held that under the doctrine of “aesthetic functionality,” there is no trademark infringement if a third party uses a trademark for its consumer appeal, rather than to identify the goods as “official.”

It’s still news, really, because there’s still what to say about it:  Fact is, I’m not a big fan of where brand licensing, and its industry (just check out the trademark thugs listed as having filed amicus brief in Rich’s full post), have taken the law of trademark.

But it does appear as if the original Ninth Circuit opinion was a bit much.  What is pretty interesting, though, is that the  change seems to have been based pretty much on just that — “maybe this is a bit much.”  As Tonya Gisselberg writes:

The Ninth Circuit undertook a different analysis in its revised opinion.  It did not mention the Dastar orJob’s Daughters cases at all, which it so heavily relied on in its initial opinion.  Instead, the court took a much more narrow approach and steered clear of any discussion of functionality.

There’s a project for your next Legal Realism seminar!

By Ron Coleman

I write this blog.