Gym not the stuff of superhero legend

Last updated 20:11 22/05/2013
Superman
DC Comics
PASSIONATE: Superman and Wonder Woman have been too busy to give their opinions on the decision.

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They may help gym-goers leap tall buildings in a single bound, but an Australian fitness company cannot use the trademark Superman Workout for its services.   

The case had Federal Court  lawyers looking up the meaning of Superman in the dictionary before a judge ruled the trademark could not be registered.

Last July, a delegate of the Registrar of Trade Marks allowed Cheqout Pty to register the Superman Workout trademark for its  fitness classes, despite DC Comics’ opposition.

The registrar ruled the Superman trademark wasn’t likely to deceive or confuse Australian consumers, nor would it cause a  significant number of people to believe there was a connection  between the fitness classes and DC Comics’ Superman character.

This decision was appealed in the Federal Court by DC Comics, which submitted the word Superman had been ‘‘utilised, adapted and  popularised’’ to such an extent that the comic book hero was the  first connotation that would come to Australians’ minds.

Lawyers for the American comic book giant submitted the  registrar erred on a number of grounds, including finding that the  primary dictionary definition of the word Superman is ‘‘a muscularly  powerful athletic superman’’.

The company accepted it didn’t invent the word Superman and that  it derives from the word ‘‘Ubermensch’’ as discussed by the  philosopher Friedrich Nietzsche.But they maintained the word was now associated with the comic  book character.

Justice Annabelle Bennett agreed saying: ‘‘Indeed, the superhero  and his ‘get-up’ are so famous that they could be said to be  instantly recognisable, as is, by name, Superman’s alter ego, Clark  Kent.’’

The judge found there was no real danger that any confusion  would arise by the normal and fair use of the word Superman in connection with the fitness workout.

But she found the company had used the trademark along with a shield logo similar to the DC Comics Superman logo ‘‘in order to strengthen the allusion to Superman’’.

In a judgment handed down on Wednesday, she found the fitness company had made the application for the trademark in bad faith.

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She set aside the registrar’s decision and said the trademark application should be refused.

- AAP

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