Ninth Circuit Withdraws Opinion On Betty Boop. Logo Licensors Breath Easier For A While.
We have previously discussed an opinion issued by the Ninth Circuit, which found that the "Betty 
Boop" character was a "functional aesthetic component" of a product upon which it was printed and therefore, like embossed designs on toilet paper and red soled shoes, was not subject to trademark protection. We found the ruling and the method of getting to the ruling to be unusual and proposed that the Court could have reached the same result by addressing other issues actually before the Court and not caused heart attacks in the offices of companies that license logos.
We were not the only ones that found the ruling to be troubling and last week the three judge panel in the Ninth Circuit took the unusual approach of withdrawing the original opinion and superseding it with a new opinion. The new opinion makes no mention of whether the panel thought they erred in the original opinion nor of any of the firestorm of criticism that the opinion evoked. They merely took our suggestion (I'm pretty sure this blog was the driving force in causing this to happen) and found chain of ownership issues and other issues sufficient to allow them to remand for further hearings.
So, for the present, it is as though the original opinion never existed. The Betty Boop trademark issue is not solved for the litigants but logo licensors are temporarily happier.
