Disney, Loki, and… A Trademark Dispute?

The Walt Disney Company, one of the largest and most well-known entertainment businesses, unsurprisingly has a lot of trademarks under its belt, and is always adding more to its collection.  

Disney often adapt popular characters and stories into film, most popularly shown in their animated adaptations of fairy tales. 

However, the group recently acquired fellow mass-media company Marvel, creators of films such as Thor.  

And it is within this sub-section that Disney has recently been critiqued for its handling of one of their trademarks – one pertaining to the character Loki, from the Thor movies.  

The characters in these movies are based upon Norse deities, making them characters of the public domain for anyone to adapt as they see fit.  

Disney and Marvel have the right to reproduce the characters as they choose, and intellectual property laws will give them the right to protect their version of the adapted character, person, or, in this case, deity. 

The Disney group can then stop others from using their characters for profit without permission, but they cannot stop others from creating their own content based upon the gods – or any other public domain character that Disney may have also adapted. 

Recently, however, Disney were accused of doing just this by a creator on Redbubble, an online store in which creators can sell their original artworks as prints and other merchandise. 

The creator, one @yourboswell on Twitter, shared the message they received from Redbubble, that their work was to be removed from the site due to infringement of the Disney Loki character. 

While it was revealed that Redbubble were behind the removal of the work, and not Disney itself, this situation has still sparked discussion online, with many users concerned that the company may cross a line when it comes to protecting their trademarked version of public domain characters – especially those that are gods and deities, important to a country’s culture. 

With the sheer size and power of a company like Disney, it comes as no surprise that many are also concerned for smaller creators’ intellectual property rights.  

When the lines are blurred, it may lead to works based upon the deity being removed incorrectly. 

While it may be clear in some cases when works are inspired by Disney’s adaptations, it is evident that others require more sensitivity, especially when the characters in question hold such importance. 

Banksy’s Trademark Struggles

From copyright to trademark, UK artist Banksy has had his fair share of intellectual property struggles, particularly in recent years. 

Banksy is an artist who is renowned globally, a household name in many places. 

His art appears overnight in the most unexpected of places, and becomes a popular hit almost immediately. 

Perhaps fuelling his popularity, is his continued anonymity. 

Despite being active for years, no one has ever found out who the artist behind the Banksy name is, and Banksy himself isn’t planning on sharing that information any time soon. 

The mystery surrounding the artist has proven to be both a benefit to his career, but also a hindrance in some cases. 

Due to the sheer popularity of Banksy’s work, it comes as no surprise that people want a piece of his art in their own homes.  

Fans are permitted to print and display the works in their own homes for personal use, but unfortunately, the demand is something that has led many businesses to incorporate Banksy’s designs into their own merchandise, often without permission

Whilst such a blatant expression of copyright infringement would usually be an open-shut case in the courts, Banksy’s famed anonymity has actually prevented the artist from defending his work to the best extent. 

Just last year, Banksy lost the ownership to his famous ‘Flower Thrower’ image because the courts believed that he could not prove his ownership whilst remaining anonymous, and that he had no intention of profiting from his own work. 

Now, Banksy has secured a new form of protection for some of his creations. 

Images such as those created by Banksy are usually protected by copyright, but due to the artist’s close association with his images as a personal brand, he has been able to apply for a trademark. 

A trademark for the images ‘Love is in the Air,’ and ‘Girl with Balloon,’ has been granted to Banksy in Australia, meaning that he can block others from profiting off of his work unlawfully in that region. 

This, however, comes as the European Union denies Banksy a trademark for his images, due to the fact that he only began selling his works himself as an effort to protect his IP and prevent others from doing so, in 2019. 

This will likely not be the last we hear about Banksy’s trademark journey, a journey that is unpredictable to say the least.  

Will Banksy’s next intellectual property endeavour be successful? 

What Isn’t Protected by Trademark?

Trademarks are an effective form of intellectual property protection, but they are not the only form of IP security.  

We know what can be protected by a trademark, but it is important to also be aware of what isn’t.  

Your trademark will exist from the moment that it is created, and is a distinguishable feature of your brand. 

A trademark alone can offer protection against infringement, but registering your trademark can add an additional layer of IP protection.  

In order to offer you the best possible level of protection, trademark registration is a rigorous process, which seeks to ensure that your trademark is not infringing upon another mark (or being infringed upon). 

For this reason, your proposed mark might be denied for a number of reasons. 

The most obvious of reasons is perhaps when a trademark, or element of a proposed mark, is already in use.  

A trademark can be denied if it sounds similar, looks similar, or has the same meaning as another registered mark.  

This can even apply to words in different languages, when in relation to the same trademark category. 

Furthermore, a trademark cannot be purely descriptive of a brand’s products, as descriptive words are too general.  

Customers are unlikely to think of a brand in relation to a descriptor alone. 

These things all have the potential to cause confusion among consumers, and so would not be in the best interest of either the brand or the customer. 

In these cases, you may have to make changes to your mark. In similar marks, the one that existed later will face possible changes, as there is proof of the former being in existence for a longer period of time. 

Is a trademark the right form of IP protection for your work? 

There may be some confusion over what form of IP protection is best suited to your work.  

Trademarks, as we know, relate to branding.  

If you wish to protect an invention, then a patent is the form of IP protection that will best protect your work. 

Original creative works are protected by copyright. Some elements of copyright-eligible work may overlap into a trademark, such as design elements. 

In this case, then a trademark may cover all aspects of your branding, whilst a copyright will only protect the artistic elements. 

Registering your trademark can help to fine-tune your mark, and offer you the best protection possible for your brand. 

What is Trademark Infringement and When Does it Occur? 

trademark is a form of intellectual property protection, much like copyright.  

While copyright protects creative and artistic forms of work (once in a tangible form) such as books and music, trademarks protect names, slogans, logos etc.  

They both, however, can still be infringed upon.  

What is infringement? 

Infringement, in short terms, is the breaking of a rule. The rules of your trademark are that it belongs to you, and no one else may use it without permission from you. 

When a trademark is infringed upon, it amounts to intellectual property theft. 

IP infringement can occur on purpose, or by accident, and could lead to financial losses and a devastating lack of recognition for your work. 

What forms can infringement take and how can it be avoided? 

During your trademark registration, Trademark House will perform rigorous checks to ensure that your mark is not unintentionally infringing upon – or simply too similar to – another trademark.  

If this is the case, then you will be notified so that you can make appropriate changes to your mark. This ensures that you are protected from infringement, whether that be you infringing unintentionally on another mark, or someone else infringing upon your work. 

Trademark infringement generally occurs most often in the form of replicas – or ‘knock-offs’ — of well-known branded products.  

It could be a fake luxury bag, a t-shirt, or pair of shoes; if the design or pattern is trademarked, then it is illegal to reproduce in any way. 

Replicas are often sold under the guise of being genuine, fooling consumers into spending their money on a product that is not what it is presented as.  

For many large companies, duplicates of their products are almost impossible to stop, due to the sheer volume of fake products being produced. 

They are still able to issue take-down notices for fake items that come to their attention.   

However, while there are some duplicates being sold at the luxury retail price-point, others are sold for a fraction of that price, making them appealing to consumers who like the original product. 

Unfortunately, with many people wanting to be able to buy luxury products at an affordable price, the duplicate industry is a booming one.  

That doesn’t mean that it’s a completely lost cause, though, and the same situation certainly won’t be the same for all trademark holders.  

Trademark holders have the ability to take an individual or group to court over trademark infringement, and with trademark registration, these cases often end in favour of the holder. 

The assistance of trademark registration can provide proof of original ownership, and may help to resolve legal matters more rapidly.  

Trademark registration may also be of great help when a large company claims that a smaller company has infringed upon their mark.  

A recent case of this is the Bentley v. Bentley case (the motor company, and a smaller UK-based clothing company).  

The car manufacturers wanted to sell their trademarked Bentley design on clothing in the UK.  

However, there already exists a Bentley clothing company, with their own original designs (unrelated to the former), trading in the UK.  

What ensued was a legal battle, with the Bentley car company attempting to void the other’s trademark so that they could sell their own clothing range. 

However, thanks to Bentley clothing’s trademark registration, which proves existence far before Bentley cars wanted to sell clothing in the UK, the case appears to be working in their favour.  

In some cases, like the above, the two companies may come to an agreement. Otherwise, it is up to the court to decide which trademark has the right to be registered in a particular country. 

Registering your trademark can help to protect your work from those who might wish to take advantage of it. 

What is a Trademark?

A trademark is a form of intellectual property (IP) protection, and can cover slogans, logos, names, images, sounds, and more.  

Trademarks have been around, in some form or another, since 1266, when bakers were required to distinguish their bakes with a unique mark. 

Trademark registration has been part of UK laws since 1875, when the Trademarks Registration Act was introduced. 

The process has undoubtedly changed since then, but trademarks and their registration are still important today – perhaps even more so.  

What makes IP eligible to trademark? 

The intellectual property which you wish to trademark must be unique. There can be no similarities, beyond a small acceptable limit, to any other trademark. 

Marks are registered in ‘classes,’ which help to categorise registered property by distinguishing the work sector that they typically trade within. 

Trademarks in different classes can have similar names, but there should be no overlapping of similar trademarks within the same class. 

Who can register a trademark? 

Trademark holders can be an individual, business, group or organisation. There are two main trademark symbols: 

 ™ is perhaps the most well-known trademark symbol, and is generally used by the company as a whole. This symbol can also be used for unregistered trademarks. 

 ® on the other hand, is an indicator that the trademark is registered, and is a symbol that is intended for use by the trademark holder. 

For your IP to be eligible, you must have the intention to commercialise your trademark once approved, or already be trading. 

With Trademark House, you can register your trademark in the UK and the EU, depending on your goals.  

Why should you register your trademark? 

Brands use trademarks to protect their products and designs form infringement, but a trademark can also be beneficial for business deals.  

Companies might be wishing to make collaborative or derivative works based upon a trademarked franchise, for example, and can set about making a deal with the trademark holder for a license to make products under both brand identities. 

Though it is not necessary to trademark your ideas, registered trademarks often do better in the unfortunate circumstances of infringement. 

Registration of a trademark provides proof of ownership, which can make all the difference in a court case. In fact, some places require trademarks to be registered in order for them to be recognised in the courts.  

Can trademarks expire? 

There is no expiry date on a trademark, unlike copyright, although in some cases you may be required to re-register it after a number of years. 

Despite the lack of expiry, it is, however, possible for a trademark to be revoked. There are several reasons why this might be. One could be infringement. Or, it could be because the trademark has lost originality.  

If a trademark has become too general, and is no longer recognisable as a unique brand, then the mark can be revoked.  

Another common way that trademarks can be lost is through inactivity. 

Trademarks can only protect your intellectual property for as long as they are in use. However, if there is a prolonged period of time where the trademarked IP is not in use, then it may cease to be protected. 

Registering your trademark is a great way to protect your brand and ideas. For more information on how to register your trademark, visit our trademark registration page or get in touch via our contact form.