3 March 2022TrademarksAlex Baldwin

DC Comics loses ‘Wonder Woman’ TM suit against Unilever

DC Comics has failed to convince a UK court that Unilever’s Wonder Mum cosmetics trademark would confuse consumers into believing it was related to the superhero Wonder Woman.

In a judgment handed down by the England and Wales High Court of Justice on Wednesday, March 3, Justice Michael Green upheld a prior UK Intellectual property Office (IPO) ruling rejecting DC’s opposition to the marks.

The IPO’s earlier decision, handed down in June 2021, rejected DC’s argument on the grounds that it had not established sufficient reputation in the UK of the Wonder Woman mark to back up their passing off claim.

DC’s counsel appealed this decision to the High Court, requesting that the court reconsider this ruling.

But Justice Green, presiding, said: “While I understand the commercial imperatives of seeking to overturn those findings, it does not remove the underlying basis for the decision that there is no likelihood of confusion.

“Despite pointing out certain respects in which DC's evidence was lacking, DC never sought to put in any more evidence.”

DC’s arguments

To start, DC claimed that there was a conceptual similarity between the two marks, claiming that the IPO had wrongly held that the marks were both “similar and dissimilar at the same time” in its analysis.

As evidence, DC counsel cited an excerpt from the IPO judgment which claimed that “there is more that is different about the respective concepts of the marks than is the same”.

However, Justice Green said that DC’s counsel had “overinterpreted” the wording in order to “eke out a point of law when non really exists”. Green also claimed that this wording did not affect the IPO’s later finding on likelihood of confusion.

DC also claimed that the release of the high-profile “Wonder Woman” film in 2017, which grossed approximately £19.5 million ($26 million) in the UK, was grounds enough to prove reputation of the trademark in the UK.

Addressing this argument, Justice Green claimed that IPO judge Judi Pike had rightfully found no reputation in relation to class 9 goods ad class 41 services.

Green said: “Ms Pike was not deciding that the ‘Wonder Woman’ film was not a success or that Wonder Woman the fictional character is not well-known. She was deciding whether the trademark ‘Wonder Woman’ had a relevant and qualifying reputation in the UK/EU at the relevant date amongst a significant part of the relevant public in respect of the registered classes of goods and services ie, 9, 16 and 41.

“She found that the evidence was insufficient to establish this and that was, in my view, a conclusion open to her.”

Justice Green rejected all of DC’s grounds and dismissed the appeal.

Case background

Unilever applied to register the trademark “Wonder Mum” under class 3 of the Nice Agreement (which covers soaps and cosmetics) in December 2019.

In July 2020, DC filed a notice of opposition on the grounds that DC relied on their EU trademark for “Wonder Woman” which had been registered under classes 3, 9, 16, and 41. To support its argument, it submitted witness statements and other evidence to prove the marks’ reputation and goodwill in the UK.

Despite the IPO highlighting that “certain respects” of DC’s evidence was lacking, DC did not attempt to bring forth any further evidence to prove its goodwill and reputation.

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