Batman wins the fight
Distinctive – Not descriptive – Mark associated with a fictitious character – Decision confirmed – Invalidity application rejected
The General Court (GC) confirms the validity of DC Comic’s trade mark: the Batman logo is distinctive for goods in Classes 25 and 28, such as clothing, costumes, and masks (Article 7(1)(b) EUTMR).
The GC finds that the mere fact that the contested mark is associated with a fictitious character does not, in itself, make it possible to rule out that that mark can also serve as an indication of origin (§ 32). Moreover, the evidence put forward by the invalidity applicant was insufficient to show that in 1996, on the date of the trade mark application, the relevant public would not have associated the Batman character with DC Comics or that, on that date, it was associated with another commercial origin (§ 42).
Furthermore, as it has not been proved that the relevant public would perceive the mark as a reference to the fact that the goods in question contain a depiction of the Batman character, the mark is not descriptive within the meaning of Article 7(1)(c) EUTMR (§ 53).
Finally, the GC adds that the existence of copyright protection does not preclude the sign from being protected under trade mark law (§ 44).
See the DECISION of the Second Board of Appeal of 6 September 2021 In case R 1447/2020-2 here_ 20210906_R1447_2020-2