Betty Boop as a Material Girl

Fleischer Studios, Inc. v. A.V.E.L.A., INC., No. 09-56317 (9th Cir. Feb. 23, 2011)

Prominent among the many interesting features of this case is its revitalization of International Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912 (9th Cir. 1980), which found that trademarks were not being used as marks, but were aesthetically functional, where consumers wanted to display the marks as signs of allegiance rather than using them as indicators of source. So here with images of Betty Boop.

Unpacking this a bit, a product feature is functional when the feature is what consumers seek to purchase, regardless of source. To put it in the way I favor, the source is not material to a reasonable consumer of defendants’ goods, as long as those goods actually portray Betty Boop, which is something that is almost tautologically true (or, in economic lingo, is a search attribute, easily confirmed before purchase). I was particularly struck by the court’s citation of Dastar in further support of its conclusion, because Dastar itself involved one of the few modern applications of materiality reasoning to a §43(a)(1)(A) case. (All the more notably so because, as the Court acknowledged, authorship of expressive works is one of the few situations where creative input is likely to be material to consumers; but, in setting a general rule, the Court appealed to the intuition that the source of the idea behind a product isn’t usually material.) As I argue in my forthcoming piece on the Lanham Act understanding Dastar and Job’s Daughters as materiality cases and rediscovering materiality in trademark cases would be a really good idea, not least because it would help reconnect §43(a)(1)(A) to its sister §43(a)(1)(B).