Prof. Tracy Reilly Publishes Trademark Merchandising Article

11.27.2012 | Law, Faculty

Professor Tracy Reilly’s latest article, “Betty Boop Almost Lost Her ‘Bling-Bling’: Fleischer Studios v. A.V.E.L.A. and the Re-Emergence of Aesthetic Functionality in Trademark Merchandising Cases,” was published this September in the Journal of the Patent & Trademark Office Society.

The article analyzes the recent Ninth Circuit opinion in Fleisher Studios, Inc. v. A.V.E.L.A., Inc. in which the court “revived” the dispraised doctrine of aesthetic functionality in the context of merchandising practices related to the famous “Betty Boop” mark. However, the court withdrew its analysis in its entirety six months later when it substituted its former opinion with a new holding on grounds other than aesthetic functionality. Reilly argues that the court’s flawed analysis fails to account for protecting the needs of contemporary consumption, thwarts the incentive of trademark owners to develop goodwill in branding practices, and discounts to an unacceptable degree the phenomenon of rampant, unauthorized third-party use of Betty Boop and other famous marks by neglecting to distinguish a competitor from a free rider in the marketplace.

Earlier this year, Reilly published “Good Fences Make Good Neighboring Rights: The German Federal Supreme Court Rules on the Digital Sampling of Sound Recordings in Metall auf Metall” in the Minnesota Journal of Law, Science & Technology. The article analyzes the difference between U.S. copyright laws and German “neighboring rights” that govern the infringement of sound recordings in the context of creating modern music. Reilly presented this article at the 2011 Annual Intellectual Property Law Scholars Conference at DePaul University College of Law.

Reilly teaches real property and intellectual property courses in the Program of Law and Technology. Her scholarship focuses on trademark and copyright law with an emphasis on digital sampling and copyright infringement. She earned her J.D., summa cum laude, at Valparaiso University School of Law.

For more information, contact Bob Mihalek, communication specialist at the University of Dayton School of Law, at 937-229-4683 or bob.mihalek@udayton.edu.