The new year has seen its fair share already; fair share of DC Comics trademark oppositions that is. The most recent opposition is to protect DC’s KRYPTONITE, KRYPTO and KRYPTO THE SUPERDOG trademarks from the registration of KRYPTON VISION. Krypton Vision, Inc. has attempted to register KRYPTON VISION in international class of goods 9, 10, and 35 all for goggles and eyewear. Will DC’s KRYPTO marks be KRYPTON VISION’s kryptonite? Can you say that sentence really fast five times?
Our very own Lex Luthor (Michael Lee) has written about “krypto” oppositions in the past, several, several, several, several times. The krypto marks owned by DC have become just as famous as Superman, and that’s pretty darn famous. For this reason, DC is obviously VERY protective over the KRYPTONITE mark and its variations. What’s interesting is that DC’s KRYPTON mark was only recently filed in 2016 on an “intent to use” 1B filing basis; this trademark in association with the upcoming Superman-based television show. DC/Warner previously tried to register PLANET KRYPTON to no avail, and seemingly gave up on KRYPTON possibly because protecting their KRYPTONITE mark is pretty much a full time job.
The opposition begins by elaborating on the Superman and Kryptonite link and how they have been famous since about 1943. The opposition is rather short compared to the countless others I’ve seen. That usually means one of two things, the opposition has little to no argument, or like what we have here, the argument is about Superman and Kryptonite and there’s really no need to waste 3 pages explaining how famous the two are. There is an obvious argument for consumer confusion here. DC states that because of the similarity of the marks and the goods and services, and the fame of Superman and the krypto marks, that the origin of KRYPTON VISION will likely be confusing to consumers. But, the KRYPTON VISION mark can be seen as not entirely trading off of Superman and the krypto mark’s success. “Krypton” is, after all, an actual element (symbol Kr), which could be another reason DC gave up on their attempts to register the KRYPTON mark. What may have changed DC’s mind is the recent surge in KRYPTON registration attempts and possibly the fact that a Canadian bicycle manufacturer just got a KRYPTON mark through in class 12 for bike frames. We’ll never know, but the aforementioned does seem to swing registration here in KRYPTON VISION’s favor.
DC has juggernaut of a property to protect with Superman and all other marks associated with Superman, this includes KRYPTONITE. KRYPTON on the other hand seems to be off on its own, and being that DC hasn’t made an attempt to register KRYPTON up until this year, they have to rely on the fact that they’ve been using the word in association with Superman since 1943. This alone is a pretty strong argument, but what weakens the argument is the fact that krypton is an element and can mean something entirely different, it isn’t an original word.