Wonder Woman may be, in the eyes of her creators, the most famous female comic book hero in the world. However, in a guideline trade marks case, evidence of her reputation in the UK did not prove super-powerful enough to prevent a range of toiletries bearing the logo ‘Wonder Mum’ being marketed in this country.
After consumer goods giant Unilever applied to register ‘Wonder Mum’ as a trade mark for use in the sale of soaps, perfumery, hair care products and the like, it encountered stiff opposition from DC Comics, the proprietor of the Wonder Woman trade mark. Unilever’s application was, however, upheld by a hearing officer of the UK Intellectual Property Office.
In challenging that outcome, DC Comics were particularly concerned by the hearing officer’s finding that it had not, on the evidence, established a sufficient reputation in the UK of the Wonder Woman trade mark, or of goodwill attached to the mark generally, for the purpose of founding a passing off claim against Unilever. DC Comics asserted that, since her first appearance in 1941, Wonder Woman’s fame as a female comic book hero had become second to none globally.
In dismissing the appeal, however, the High Court noted that DC Comics bore the burden of proving the extent of Wonder Woman’s reputation in the UK. The hearing officer was rightly critical of DC Comics’ reliance on generalised statements as to Wonder Woman’s worldwide fame. She was entitled to find wanting actual, detailed evidence of Wonder Woman’s reputation as a comic book and entertainment industry character in this country.
The hearing officer accepted that there was some conceptual similarity between the two marks in that both convey the impression of someone female who is very good or effective at doing something. However, she was entitled to find that the degree of similarity was low and insufficient to give rise to a likelihood of confusion on the part of the average reasonably well-informed and observant consumer.
There was insufficient evidence that the use of the Wonder Woman mark on merchandising in the UK had led to DC Comics’ customers, or potential customers, being misled into thinking that goods bearing the ‘Wonder Mum’ logo are commercially linked to their business. Overall, the Court detected no material error of law or principle in the hearing officer’s multi-factorial assessment.