A courtroom battle over a fitness firm's effort to trade
mark the words "Superman Workout" has ended with the Man
of Steel walloping them good and proper.
DC Comics, which has rights to the Superman name, successfully
appealed in the Federal Court against the fitness company's
lodgement of the name in the Register of Trade Marks.
As the Sydney Morning Herald reported, Justice Annabelle Bennett
considered many uses of the Superman name, including German
philosopher Nietzsche's 1883 concept of an ideal
'Ubermensch' or 'Super Man' with greater spiritual
powers who is above notions of good and evil.
DC Comics invented Superman as a comic strip character in 1938
and argued that when people hear the name Superman they think of a
superhero in blue with red cape and secret identity as mild
mannered reporter Clark Kent.
Last July the Registrar of Trade Marks ruled there would be no
confusion between the fitness classes and the comic superhero
because DC Comics had never conducted fitness classes. The
Registrar allowed the name.
But DC Comics argued in court that trade marking the Superman
name for a fitness exercise would cause confusion or deceive the
public into thinking it had something to do with their superhero.
The judge agreed.
The case throws a fresh focus on the importance of Trade Marks
and changes to the law that came into operation last month.
The aim of changes to the Intellectual Property Amendment
(Raising the Bar) Act 2012 was to simplify and streamline the trade
marking process. But lawyer Tony Mitchell of Stacks Business said
companies with Trade Marks should check with their legal adviser to
see how the changes affect them.
"Brand owners should protect their Trade Marks under the
new rules and changes to time limits by consulting their legal
adviser," Mr Mitchell said.
Section 17 of the Trade Marks Act defines a Trade Mark as
"a sign used, or intended to be used, to distinguish goods or
services dealt with or provided in the course of trade by a person
from goods or services so dealt with or provided by any other
This can include a letter, number, word, phrase, sound, smell,
shape, logo, picture or packaging.
Trade Mark battles can be fierce. Crazy John's fought Crazy
Ron's. Hush Puppies bit Posh Puppy. Apple chases anybody who
sticks "i" in front of their product. McDonald's
devours any food outlet preceded by a "Mc".
So it's vital to know your rights under the changed Trade
Mark laws, or you just might be clobbered by Superman.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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