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This case examines a key question - How can the law of passing off and trade mark law effectively protect rights in a well-known image?
Hearst bought a claim against US company Avela, along with its licensing agent and various licensees, alleging that they had:
The defendants counterclaimed for trade mark invalidity but this will be heard during the copyright infringement hearing in 2015 as the two issues are linked.
Hearst established that they had significant goodwill being the only source of official Betty Boop merchandising in the UK over the last 20 years (or at least until the defendants' activities came to light).
The central issue in this case was misrepresentation—whether the general public would recognise the Avela-licensed goods as official merchandise or not. In some senses, Avela made matters worse for themselves as they required their licensees to ensure that all products were labelled 'Official Licensee' or 'Officially Licensed Product'. The High Court concluded that such labelling would indicate that the item was licensed by an official source (namely the claimants). Accordingly, the defendants had made a misrepresentation.
Unusually, this case concerned another category of consumers, the retailers (such as Argos and Primark), who believed they were buying products from an official licensee. The court found that they too had been misled.
The deception of both the end consumers and the retailers clearly damaged Hearst's goodwill and therefore the defendants were liable for passing off.
In respect of both the trade mark infringement and passing off claims, Avela and the other defend
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