Marvel is known for its comics like the Hulk and Spider-Man. Such creations are protected by copyright. But to get a broader protection, Marvel filed a comic character as a trademark in the European Union. Smart move, as in a lawsuit, you can assert other criteria as well, for example confusion.
The EUIPO accepts the trademark for almost all products and services, but not for everything: the trademark is refused for dolls, figures and similar products because of a lack of distinctiveness. The EUIPO finds that the superhero is an “action figure” and certainly has a different look than an ordinary man, but compared to other superheroes, the appearance is quite banal.
Marvel appeals the decision and with success: the Board of Appeal criticizes the reasoning of the first instance. The presumption that the trademark was filed for action figures and that the graphic representation is an action figure is “entirely mistaken”. This would mean that no representation of action figures could ever be registered in class 28. So, the trademark is admitted after all.
So, appealing seems worthwhile in some cases!
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