Brands Update — March 2014: trademarks and character merchandising... the Betty Boop case

The English High Court has upheld trademark rights in the BETTY BOOP name and character based on a variety of UK and EU Community trademark (CTM) registrations for both words and devices, as well as passing off. Although the case was fought in the UK, the court’s finding of EU CTM infringement applies across the EU. The case demonstrates why a consistent and carefully controlled brand protection strategy will have long-term benefits.

The claims were brought against a number of entities involved in the manufacture and sale of merchandise relating to the cartoon character Betty Boop. Cartoons featuring Betty Boop were first released in the US in the 1930s. The merchandising rights were kept separate from the film/cartoon rights, and since the early 1970s merchandising had been carried out by a division of Hearst Holdings called King Features. Its first trademark registrations in the EU date back to 1992. The defendants launched a merchandising operation in the US (by which time worldwide merchandising sales by the claimants were worth some $280m [£170m]). In 2009, this was expanded to the UK.

The defendants claimed that their products used images of the Betty Boop character from old film posters and that they deliberately avoided using the words ‘Betty Boop’. Copyright claims, and an allegation of bad faith in relation to the trademarks (which the court considers is linked to the copyright claims), will be the subject of a trial in 2015…

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