Capital kryptonite defeats Superman trademark

SHANE COWLISHAW
Last updated 07:00 09/12/2011
sean
MAARTEN HOLL/Fairfax NZ
MAN OF STEEL: Sean O'Connor outside his Superloans store in Porirua.

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He may be able to leap tall buildings in a single bound, but Superman cannot defeat New Zealand's trademark authority.

The owner of the Superman licence – international comic and movie company DC Comics – lodged a complaint with the International Property Office of New Zealand that Wellington finance company Superloans was infringing on the popular superhero.

Superloans, with offices in the capital as well as Lower Hutt, Porirua and Napier, uses a flying superhero – Buck – as its mascot.

DC alleged Buck was strikingly similar to its superhero and provided evidence of New Zealand sales of Superman products, plus information about the sale of the 1938 edition of Action Comics #1 – the first comic to feature Superman – for US$1 million (NZ$1.28m) to justify its claim.

But assistant commissioner of trademarks Jenny Walden said that, although it was clear Buck was a superhero because of his "exaggerated musculature", fitting body suit and his ability to fly, there were clear differences between the two characters.

The shield on Buck's chest with a dollar sign was far different to Superman's, and his portrayal holding money went against Superman's altruistic nature.

She also said the shape of the shield was a point of difference, as Superman's diamond-shaped logo "may be perceived as a reference to strength because a diamond is the hardest naturally occurring substance and Superman is known as the Man of Steel".

Superloans and DC's products and services bore no resemblance and Ms Walden threw out the claim, ordering DC to pay Superloans costs of $3570.

Superloans director Sean O'Connor said the legal action had dragged on for about three years, costing the firm "moonbeams". "It's beyond belief, it basically boils down to lawyers making money." Likening the battle to that between David and Goliath, Mr O'Connor said DC had argued that people would see Superloans' logo and go into the shop wanting to buy Superman merchandise.

"Their whole argument was how popular Superman is and how much money they make from comics and every other aspect of Superman. They didn't even want to get into the aspect that our guy doesn't look like Superman."

While the ruling had gone in their favour, the costs awarded barely covered a quarter of the real expense and DC still had the option to appeal against the ruling to the High Court.

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DC Comics and its lawyer could not be contacted yesterday.

Superlaw

The essential elements of Superman:

Strength

The ability to fly

A superhero suit including a matching top and tights

Matching cape, boots, and trunks

A shield logo containing a stylised S on the chest of the superhero-suit

Superman's flying pose:

One arm extended straight out with a clenched fist

The corresponding leg extended straight behind

The opposite arm beside the torso bent at the elbow with a clenched fist

The corresponding leg bent approximately 90 degrees at the hip and also bent at the knee at a similar angle.

- The Dominion Post

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