Forget Parody: GOTHAM BATMEN Confusable with Famous BATMAN, Says Split TTAB Panel

A divided Board panel sustained this opposition to registration of the mark GOTHAM BATMEN, in standard and design form (shown below), for "general business networking referral services, namely, promoting the goods and services of others by passing business leads and referrals among group members" and for "entertainment in the nature of amateur softball games." The panel majority found the marks confusingly similar to the registered mark BATMAN, deemed famous for comic books and movies. Applicant's parody claim went, as usual, nowhere before the Board. DC Comics v. Gotham City Networking, Inc., Opposition No. 91194716 (July 17, 2015) [not precedential].

This post shall not recapitulate the evidence of fame. The panel majority found that the fame of the BATMAN mark "is transferred to a vast array of collateral or merchandising products that are purchased because they bear the BATMAN trademark." In other words, "consumers have come to associate the fame of BATMAN with the products bearing that mark." [Huh? So BATMAN is famous for every product that bears the mark? - ed.]. Once the BATMAN mark was accorded that scope and strength, it was three strikes and out for applicant.

Because Opposer’s BATMAN mark is famous and it has been licensed for use on a myriad of products, countless individuals have been exposed to Opposer’s BATMAN mark and to its use on or in connection with collateral products, including t-shirts and baseball balls and bats. Under these circumstances, individuals familiar with Opposer’s BATMAN marks and their associated goods and services, when confronted with Applicant’s mark in connection with softball games and networking services, will consider such activities to be sponsored by or affiliated with Opposer.

With little or no discussion, the majority also deemed Opposer's "batwing" logo to be famous. The addition of GOTHAM to BATMEN does not distinguish the marks, said the panel majority, since it is "undisputable" that the superhero is known to hang out in a place called Gotham. Furthermore, any aural dissimilarity would be outweighed by "the recognition of that fact by those familiar with opposer's marks."

Parody? Fuggeddaboutit. "The right of the public to use words in the English language in a humorous and parodic manner does not extend to such words as trademark if such use is likely to cause confusion." [Kind of begs the question, doesn't it? - ed.]. Moreover, it is not Opposer's BATMAN marks that are the target of the parody but Applicant's own members (i.e., the superiority of their softball and networking prowess). The parody is an inside Joker. [But applicant wasn't laughing - ed.].

And so the Board sustained the opposition under Section 2(d).

Dissent: Judge Taylor dissented, contending that Opposer had not met its burden to prove fame. She would find that the BATMAN marks are not famous and, because the gods and services of the parties are so different, that confusion is not likely, or at least that Opposer did not prove that confusion is likely.

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TTABlog comment: I subscribe to the theory that some marks are so famous that the likelihood of confusion is diminished, the public not being completely gullible, but able to recognize an obvious parody.

Text Copyright John L. Welch 2015.