Likelihood of Illusion

by Winthrop & Weinstine, P.A.

Over Thanksgiving weekend, I had the pleasure of visiting my grandmother’s farmhouse in northwest Iowa. I don’t think I had been there in probably five years, as she had been living in California for most of that time.

Upon entering, I was immediately taken back to my childhood. Nearly everything was exactly the same. The only noticeable change was that the old 24 inch tube television in the corner of the living room had now been replaced with a 24 inch flatscreen television. I guess there was also a new VCR/DVD combo, but the sizable library of “time shifted” VHS tapes were still there (thanks Sony v. Universal!).

I have a lot of childhood memories from visiting that place, but one thing that has always stuck with me is watching the David Copperfield specials on that 24 inch television. My absolute favorite, both as a kid and an adult, was where he made an entire Orient Express train car elevate and then disappear.

After returning home from Thanksgiving, I had to watch it again. Thanks to YouTube, it was pretty easy to find. You can watch it here. I quickly was sucked into the internet wormhole looking for more information about David Copperfield. Turns out, David Copperfield recently filed an intent-to-use trademark for logo, a DC and Design mark, shown below:

The application sets forth a number of goods and services: various entertainment services in class 41, magic kits and other toys in class 28, clothing and shoes in class 25, and  a number of paper goods in class 16, including calendars, books, color pencils, school supplies, and comic books.

And poof goes the dynamite, er, chances of avoiding a likelihood of confusion refusal. Although the design elements are distinct, the literal element of David Copperfield’s logo is identical to a number of registered DC and Design marks owned by DC Comics (you might have heard of them), including Reg. No. 1,084,736, Reg. No. 3,336,223, and Reg. No. 4,415,431 for DC DC COMICS and Design. Oh, and don’t forget Reg. No. 1,003,409 for a standard character DC mark for comic books. It’s probably not helpful that the standard character mark has a first use date of 1940, 16 years before David Copperfield was born.

Unsurprisingly, an Office Action was issued on Dec. 1. Surprisingly, though,  the examiner ”found no conflicting marks that would bar registration under Trademark Act Section 2(d).” The DC Comics registrations were not cited, nor were any of the DC / DC SHOES marks cited based on David Copperfield’s inclusion of shoes, athletic shoes, and “skateboarding boots.”

Apparently this is David Copperfield’s “make records of registrations disappear” illusion. Not quite as dramatic as a train car, but impressive nonetheless.

We’ll pay attention to see if the application is approved for publication. If it is, forget the summer blockbuster movies. Grab your popcorn and let’s watch magic take on might as David Copperfield battles Superman, Batman, and the rest of the D.C. Comics universe. My money is on DC Comics, but maybe David Copperfield can pull a bunny out of his hat (or an amendment to his identification of goods…).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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