For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Sunday, 3 March 2013

Batmobile, batsman and barberships: a super trilogy

Following the revelation that the New York Yankees really were the Evil Empire, the IPKat's friend Miri Frankel has just produced another tasty morsel of life in the fast lane of US intellectual property law.  In short, while we Europeans are still huffing and puffing about rights in personalities, our brethren in the bottom left hand corner of the United States, the bit where fact and fantasy are so often not merely indistinguishable but interchangeable, have ruled that a car is a copyright-protected character.  Miri explains as follows:

"Move Over Robin

KAPOW! Robin and Catwoman (clearly the Kat’s favourite Batman cohort) have some competition as to who is the most beloved Batman sidekick. Warner Brothers recently won its claim that the Batmobile is a copyright-protected character as the iconic “superhero” sidekick of crime fighter, Batman. A California federal court ruled that the Batmobile, as an “extension of Batman’s own persona”, is a character entitled to copyright protection, and that defendant Gotham Garage’s building and selling of full-sized, road-ready replicas infringed that copyright. The Court also held that the defendant’s vehicles infringed Warner Brothers’ trade marks because the replica vehicles feature trade marked bat symbols and Gotham Garage’s advertising and promotion of the replica vehicles incorporated WB’s trade marked word marks.

But that wasn't all.  The fanciful, artistic elements of the Batmobile that distinguished it from a standard car – elements that can be separated from the usefulness of the vehicle – were also copyright-protected. These elements, including the bat wing tail fins, bat face grill, the bat gadgets and the rims incorporated into the vehicle, were not considered “useful articles” and thus not subject to copyright protection in the United States. Instead, they were held to be non-functional, artistic elements that could be conceptually separated from the “useful article” (the vehicles) into which they were incorporated, and thus subject to copyright protection. In response to the Gotham Garage’s argument that this extension of copyright protection would extend copyright law over all vehicles, the Court responded that “the Batmobile is sui generis”.   
The IPKat and Merpel don't have
a monopoly of fancy tails
While it is accepted by all that the Batmobile is one of a kind, I think it achieves this categorization on the basis of its personification in the Batman franchise as a character, rather than because it has uniquely artistic components that are separable from the useful article to which they are attached. Indeed, American vehicle manufacturers have long sought – and often received – protection over fanciful, innovative and unique elements of their vehicles, whether under copyright law or trade mark or trade dress law. Many such companies protect grille designs, the shape and placement of the head and brake lights, and other unique elements that are not necessitated by engineering or aerodynamics (one of the most famous examples is the tail fin design on classic 1960s Chevys, above).  
Registering these elements for trade mark or copyright protection, as applicable, gives vehicle manufacturers useful legal tools for preventing imitation and infringement from third parties, e.g. sellers of scaled models. European readers are likely, and understandably, reminded of the Adam Opel litigation in Europe (culminating in the Katpost here); the difficulty of succeeding in such lawsuits in certain jurisdictions is precisely the reason manufacturers seek to protect as many elements of their designs as possible under the current legal structures. The court could reasonably have stopped Gotham Garage’s activities merely with the finding that the most recognizable elements of the Batmobile – the elements that change it from a mere car into the Batmobile – are protected by copyright. By going further to hold that the Batmobile is protectable in entirety as a character – BAM! POW! – the court has given Warner Bros. an interesting new tool for its IP protection toolbox. On the other hand, it also ensured that broad IP protections are not easily achieved by other vehicle IP owners".
The court's ruling in this fascinating case can be found here.

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W G Grace: the
original Batsman
The Batmobile episode related above is far more fun than the genteel affair which brought Batman to court recently in the United Kingdom.  The ever-vigilant and much kat-patted Chris Torrero has even taken to reading the Mail Online in his quest for nuggets of news for this weblog and this is where he found the successful trade mark opposition of DC Comics to an application by Adelphoi to register the word BATSMAN as a trade mark for a range of goods of which the majority were said to be "cricket-related" [note for US readers: cricket seems to contain more unintelligible terminology than any other sport and has more rules than even the European Patent Office].  Apparently British consumers would be in danger of confusing BATSMAN products with the Caped Crusader.  The heading officer's decision isn't yet available online, but will eventually be available here. A kat-bat to Chris ...?

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Supermen fades to fro's. Finally, since Superman has more powers than any other superhero and needs neither cars nor bats in order to perform his daily heroics, here's a link to a post from Junior Blogger Melissa Grosett, a member of the American University's IP Brief blog team.  Melissa relates how Clark Kent's alter ego took on demon Florida barbershop proprietor Reginal Jones -- and won.  Without a fresh supply of the right sort of kryptonite, Jones had to rely on the various defences that exist under US law when facing infringements of the Lanham Act, the Anti-cybersquatting Consumer Protection Act and sundry unfair competition claims under Florida law. The defendant's stores -- Supermen Fades To Fros and Superman Pro Barbershop -- each incorporated the Superman logo within their shop signs.  DC Comics were worried that Jones’ use of their trade marks would cause confusion and deception, leading people to think that he was somehow affiliated with them.

2 comments:

Anonymous said...

BBC News reports "'Batman' brings in suspect to Bradford police", so the question is: will WarnerBro sue Bradford hero for copyright infringement?

Anonymous said...

BATSMAN decision has been online for some time:

http://www.ipo.gov.uk/types/tm/t-os/t-find/t-challenge-decision-results/t-challenge-decision-results-bl?BL_Number=O/504/12

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