Less than two weeks after the iconic vehicle from the 1966 Batman television series sold at auction for $4.62 million, a custom carmaker was arguing that a federal judge should dismiss DC Comics' claims that his Batmobile replicas infringe on the company's trademarks.
The publisher sued Gotham Garage owner Ben Towle in May 2011, accusing his California-based business of manufacturing and selling unlicensed replicas of the 1966 and 1989 Batmobile (the company also offers a recreation of the TV show's Batboat). DC seeks a permanent injunction, the destruction of all infringing products and damages of no less than $750,000 for each infringement.
While Towle failed to persuade a judge in February 2012 that the complaint should be thrown out on the grounds that the U.S. Copyright Act affords no protection to “useful articles," Law360 reports on Wednesday his attorney took a different approach, arguing that DC waited too long to assert its rights.
Lawrence Zerner told U.S. District Judge Ronald S.W. Lew the publisher knew of Towle's replicas as early as 2003, when a lawyer for Warner Bros. contacted him about photos she had seen of the Batmobiles in various stages of production.
“[The WB lawyer] doesn't say, 'Stop,' doesn't say, 'You're violating our copyright. Don't use our marks.' Nothing,” Zerner said in arguing for his motion for summary judgment. “This is her job — to stop infringement for DC.” He also cited testimony from the publisher's deputy general counsel for intellectual property that DC hadn't been sending cease-and-desist letters to replica manufacturers from 1995 to 2010.
However, DC's attorney Andrew Coombs, who also filed for summary judgment, insisted there's no evidence the company of Towle's activities in 2003.
There's a lot at stake for Towle and for DC, which stated in an amended complaint that, "one of the most famous identifiable elements associated with the Batman characters is a high-tech extraordinary automobile identified as the Batmobile vehicle, which has undergone many transformations over the years and includes various versions in design and style."
Emphasizing Wednesday that the publisher had only acquired marks for the Batmobiles in November, Towle said in his motion that, “The implications of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books so that they could protect what, up until now, was unprotectable.”
The replicas, which cost as much as $90,000, take more than a year to complete.