## Facts

- DC Comics owned and exploited the *Superman* entertainment property, including the recurring fictional newspaper name “Daily Planet,” used in the stories and as a promotional feature in comic books.
- Through longstanding publication and licensing, “Daily Planet” appeared in connection with *Superman*-related promotions and consumer merchandise, though it was not separately federally registered by DC.
- Jerry Powers and related entities used “Daily Planet” as the title of an underground newspaper that operated from about 1969 to 1973 and later ceased.
- Defendants were aware of the “Daily Planet” association with *Superman* and used *Superman*-related references and a similar presentation in their publication.
- In 1978, shortly before release of a major *Superman* motion picture and related commercial exploitation, defendants sought to revive their “Daily Planet” newspaper.
- DC sued under Lanham Act § 43(a) and New York unfair competition/dilution theories; both sides sought preliminary injunctive relief.

## Issues

1. Whether “Daily Planet,” a recurring fictional element associated with *Superman*, had acquired protectable common-law trademark significance identifying DC as source under Lanham Act § 43(a) and New York law.
2. Whether defendants’ actual or threatened renewed use of “Daily Planet” for a newspaper and related activities was likely to cause confusion as to sponsorship/affiliation or dilute DC’s goodwill.
3. Whether the standards for preliminary injunctive relief favored defendants’ request to bar DC’s use or DC’s request to bar defendants’ use.

## Decision

- Defendants’ motion for a preliminary injunction barring DC’s use of “Daily Planet” in connection with the forthcoming *Superman* film and related commerce was denied.
- DC’s cross-motion for a preliminary injunction was granted.
- Defendants were preliminarily enjoined from using “Daily Planet” in commerce.

## Legal Principles

- Lanham Act § 43(a) and New York unfair competition law can protect unregistered designations that function as source identifiers and have acquired secondary meaning.
- A fictional or narrative element of an entertainment property can qualify for common-law trademark protection when the public associates it with a single source and it is used in commerce, including on licensed goods and promotions.
- Likelihood of confusion includes confusion as to sponsorship, licensing, or affiliation; intent and knowing imitation may support an inference of likely confusion.
- At the preliminary injunction stage, a showing of likely success (or serious questions with a hardship balance favoring the movant) and irreparable harm supports injunctive relief; harm to goodwill and loss of control over source identification may constitute irreparable injury.

## Conclusion

The court held that DC had superior, protectable rights in “Daily Planet” as a source-identifying element associated with the *Superman* property and that defendants’ revived use threatened confusion and dilution; it therefore enjoined defendants from using the name and refused to restrain DC’s use in connection with the film and related commercialization.


DC Comics, Inc. v. Powers, 465 F. Supp. 843 (S.D.N.Y. 1978)