Intellectual Property | Batman Wins Again

The Intellectual Property Office Adjudicator has ruled that a British sound design company that wanted to trademark several of its cricket-related products under the name Batsman may not do so in case the public confuses them with the comic book superhero.

The Adjudicator refused to grant a trademark for the name to London-based Adelphoi Ltd and ruled in favour of DC Comics, the US entertainment giants who own the Batman trademark.

In his ruling, the judge accepted that ‘Batman is a very well known comic book character’, first invented in 1939. However, despite accepting that there is a ‘conceptual dissonance’ between Batman and Batsman, described as ‘a type of cricketer or an aircraft safety officer’, he found that the two words ‘may easily be mistaken for one another’.

He added that the marks look and sound so close that the difference in concept is likely to go unnoticed and if the difference goes unnoticed then the conceptual difference has no material effect, leading to a ‘likelihood of confusion’.

Referring to the evidence presented by DC Comics, the adjudicator said they relied on the European trademark in the Batman name and the goodwill stemming from the use of the mark in relation to comics, films, television programmes and “a wide variety of merchandise”.

He said that Batman has appeared in thousands of comic books, with global sales figures ranging from around $6m to $12m per year between 2001 and 2007.

In addition, Batman Begins grossed over £30m in the UK, and its sequel, The Dark Knight “appears to have been even more popular, and had sold more than 2.5 million copies on Blu-ray and DVD by December 2008”. The judge also detailed almost $20m in merchandising sales in the UK between 1998 and 2011.

However, he declined to order Adelphoi to pay DC’s legal costs, finding that DC’s lawyers could have been “more measured in their approach” and provided less evidence to support its case than the eight lever arch files they put in.