Jess Harrold writes;
England may be the home of cricket, but that does not mean the British public can tell the difference between a “Batsman” and the super hero Batman.
As a result, a UK cricket company’s bid to trademark the brand name “Batsman” has been knocked for six by the Caped Crusader himself.
In a throwdown that would not have looked out of place in the campy 1960s Batman TV series, adjudicator Oliver Morris, of the UK’s Intellectual Property Office, found that, in the battle of “Batman vs Batsman”, the American super hero triumphs over the humble English cricketer.
He ruled in favour of DC Comics, which raised an objection to the application, finding that the British public would be likely to confuse the “Batsman” name with their Batman trademark.
Mr Morris refused to grant Adelphoi Ltd, a sound-design company based in Covent Garden, London, a trademark in the “Batsman” name. It had sought to secure the Batsman trademark for exclusive exploitation across a huge range of goods, many of which were cricket-related.
In his ruling, he said: “As a matter of judicial notice, I am prepared to accept that Batman is a very well known comic book character. The evidence establishes that the character was created in 1939.”
Showing an expert grasp of comic book continuity, he added that the extensive evidence in the case showed there is also a character called “Batsman”, who, he said, is “apparently the disembodied consciousness of a future Batman”. However, he said that this character was of no significance in his decision.
He said that DC Comics relied on its 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”.
Surveying the evidence, he said that Batman has appeared in thousands of comic books, with global sales figures ranging from around $6 million to $12 million per year between 2001 and 2007.
He said that the movie Batman Begins grossed over £30million in the UK, and its sequel, The Dark Knight “appears to have been even more popular”, and had sold more than 2.5million copies on Blu-ray and DVD by December 2008.
He also detailed almost $20million in merchandising sales in the UK between 1998 and 2011.*
Though he ruled that there was, as a matter of fact, “conceptual dissonance” between Batman – “the name of a well-known comic book character” and Batsman – ” a type of cricketer or an aircraft safety officer” he found that the two words “may easily be mistaken for one another”.
He said that the degree to which the average consumer considers purchases meant that the difference in concept would not readily leap out.
He added: “The marks look (and sound) so close that the difference in concept is likely to go unnoticed. If the difference goes unnoticed then the conceptual difference has no material effect. There is a likelihood of confusion.”
He said that there was a likelihood of confusion even in the context of cricket related goods.
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 it in.
*The full list:
- Accessories (including watches, cameras, clocks, wallets, hats, torches) – $700,000;
- Clothing items – $5 million;
- Domestics and linens – $290,000;
- Food items – $600,000;
- Fine art and collectibles – $70,000;
- Footwear – $95,000;
- Gifts and novelties – $600,000;
- Home merchandise – $35,000;
- House wear – $290,000;
- Personal care and health – $400,000;
- Pet products – $3000 (for the period 2006-2010);
- General promotions – $780,000;
- Publishing, audio and music – $80,000;
- Stationery and paper goods – $760,000;
- Toys, games and audio equipment – $9.5 million;
- Video and computer items – $350,000 (for the period 1998-2010).
- Sporting goods (including sports bags, boxing gloves, skateboards, bicycles, roller skates, ice skates, scooters, protective clothing, basketball accessories, golf clubs, dart boards, snorkeling equipment, paddle bats, Frisbees) – $430,000 (for the period 2004-2011).
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