Betty Boop sends Licensing Agents Cock-a-Hoop

The High Court has recently (25 February 2014) held that the use of imagery of Betty Boop constituted passing off of the business which commercialised the character. The court did not consider the copyright case, needing only to decide that by using the imagery the defendant misled consumers into believing that the products came from the same source as the “official” goods. This is a significant decision which underlines the move towards a more commercially-aware approach by the UK judiciary to the licensing industry. For many years UK judges suggested that consumers did not ascribe much meaning to images on merchandise, thinking of them as simply an image of a famous person or character on an item. This ignored the reality of the market for licensed product, however. In the last 10 years cases have slowly moved the dial, starting with a case relating to former F1 driver Eddie Irvine. Part of what has held the development of the law back has been the reticence to test the position, since the value of licensing is in part dependent upon the ability to prevent would be licensees producing competitive products without a licence; if a court had found that the brand or property owner could not prevent the third party from trading then this would have had a catastrophic effect on the industry. Recently cases involving the vintage children’s programme BUTTON MOON and the singer Rihanna have suggested that a more commercial approach was being taken, with courts recognising the consumer’s expectation that merchandise is produced under licence. The BETTY BOOP case confirms this, with the judge expressly stating that consumers expect merchandise to be licensed. Whilst it is not a blanket success for all intellectual property owners – the courts stating that the position for fictional characters is stronger than that for celebrities – the outcome strengthens the legal position for those who make their income from intellectual property, licensing and endorsement.

If you have any questions concerning this case, please get in touch with your usual contact at Swindell & Pearson Ltd or at [email protected].