The judge agreed that the images were decorative and attractive but not purely so. In respect of both the trade mark infringement and passing off claims, Avela and the other defendants argued that their use of the Betty Boop image was purely decorative and was not being used in a trade mark sense (ie as a badge of origin). How did the court address the defendants' case that use of the Betty Boop image was purely decorative? The deception of both the end consumers and the retailers clearly damaged Hearst's goodwill and therefore the defendants were liable for passing off. ![]() The court found that they too had been misled. 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. Accordingly, the defendants had made a misrepresentation. The High Court concluded that such labelling would indicate that the item was licensed by an official source (namely the claimants). 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 central issue in this case was misrepresentation-whether the general public would recognise the Avela-licensed goods as official merchandise or not. ![]() 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). What did the court say about passing off? 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.
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