‘Betty Boop’ trade marks infringed
Posted: 3rd March 2014
The corporate heirs of American cartoonist Max Fleischer have triumphed in breach of trade mark and passing off claims against those engaged in selling merchandise in the UK and Europe bearing the image of his best loved character, Betty Boop.
The Betty Boop motif and name sprang from Mr Fleischer’s fertile mind in the 1930s and are protected by UK and Community trade marks registered by US companies, one of which has the cartoonist’s grandson as its chief executive officer.
The trade mark holders launched High Court proceedings against five trading companies which they accused of exploiting Betty Boop’s name and image without lawful authority to sell a wide range of products.
In upholding the holders’ complaints, the High Court found that Betty Boop had a distinctive character that had become well known through long and widespread usage and which enjoyed a significant reputation. Members of the public believed that there was a single source of merchandise bearing her name and image.
The merchandise complained of all bore images similar to the registered marks and the companies’ avoidance of using the words ‘Betty’ and ‘Boop’ in combination did not avail them. An argument that the infringing designs were based on 1930s movie posters, created long before the relevant trade marks were registered, was also dismissed as a mere ‘fig leaf’.
The companies argued that their use of the Betty Boop image was an exercise of ‘legitimate commercial liberty’ and that a ruling in favour of the holders would amount to a disproportionate interference with their right to freedom of expression, enshrined in Article 10 of the European Convention on Human Rights.
However, the Court was not satisfied that the companies – at least one of which had purported to license the use of Betty Boop imagery by others – had made out a case based on honest commercial practices. Further issues in relation to alleged breach of copyright were deferred for argument on another day.