Cartoon characters as a trademark

Betty Boop is an animated cartoon character created by Max Fleischer. Boop has been featured in comic strips and mass merchandising. With her sexy appearance, she became one of the most well-known and popular cartoon characters in the world.

In February 2011 the U.S. Court of Appeals for the Ninth Circuit ruled that the image of Betty Boop, the well know cartoon character created by Max Fleischer, as used on t-shirts and handbags, was “aesthetically functional” and therefore not protectable as a trademark. A terrible decision for cartoon character brand owners, as this could endanger their licensing business.

Widely critiqued, the Court unexpectedly amended their opinion last August.

Whereas in the prior opinion, Court Circuit held that the depiction of Betty Boop on the defendants’ goods was aesthetically functional and not a trademark, the panel now eliminated any and all reference to the Betty Boop image as a “functional aesthetic component of the product.

In the end the Betty Boop character is protected by trademark (and of course copyright) law.

MarkMatters.com agrees with the amended ruling. Copyright aside, we see no reason why a (cartoon) character cannot be registered as a trademark.

Erwin Hauër

“Hope is not a strategy.”

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