What it sounds like: a trade mark battle between Demon Hunter and KPop Demon Hunters

“KPop Demon Hunters” has grown far beyond a successful animated film, becoming a global phenomenon that has attracted audiences around the world. Its popularity has been driven in part by the growing influence of K-pop itself, and the franchise has expanded into music, merchandise and plans for live performances.

However, this success has also led to confusion. In the United States, a parent reportedly bought tickets for what they believed was a KPop Demon Hunters show for their young daughter, only to discover that the tickets were actually for a concert by “Demon Hunter”, a Christian metal band.

What might have started as an amusing misunderstanding has developed into a trade mark dispute, with Demon Hunter, which owns a trade mark for its name, taking legal action against Netflix. Will it be a “Takedown” by Netflix or will Demon Hunter show Netflix “How It’s Done”? However it turns out, this dispute is a “Golden” opportunity to review the key principles of trade mark infringement.

Consumer confusion

This is not simply a dispute over two similar names, “Demon Hunter” and “KPop Demon Hunters”. Under US trade mark law, similar to the position in the UK, one of the central questions in trade mark infringement is whether the use of a mark is likely to cause consumers to believe that the parties are affiliated, connected or associated with one another.

The issue, therefore, is not simply whether the two names look or sound similar, but whether consumers are likely to be confused about the source of the goods or services or about a possible connection between the two brands.

Different commercial contexts, similar names

An important factor is the extent to which the parties operate in different commercial contexts. Demon Hunter is a Christian heavy metal band that appeals to a relatively niche audience, whereas KPop Demon Hunters originated as a Netflix animated film and has attracted a much broader audience, including families, younger viewers and global K-pop fans.

Demon Hunter's brand centres on recorded music, live performances and merchandise, while KPop Demon Hunters remains closely associated with the film and its fictional characters.

These differences may be taken into account when assessing the likelihood of consumer confusion.

The names themselves, however, present a more complicated question. The relevant comparison is not simply between “Demon Hunter” and “Demon Hunters”, but between the existing mark “Demon Hunter” and the full expression “KPop Demon Hunters”. Demon Hunter may argue that “KPop” is merely descriptive and that “Demon Hunters” remains the dominant element of the name. Netflix, on the other hand, may contend that consumers perceive “KPop Demon Hunters” as a distinct brand and that the addition of “KPop” creates a different overall commercial impression.

The distinctiveness of “Demon Hunter” is also relevant. Although the phrase was not invented by the band and reflects a concept commonly found in fantasy and supernatural entertainment, a mark can acquire distinctiveness through long-term use. After more than twenty-five years of using the name, Demon Hunter may argue that consumers associate it specifically with the band and its music.

The band may also point to reported instances of actual confusion, including consumers mistakenly purchasing tickets or otherwise assuming a connection between Demon Hunter and KPop Demon Hunters. While such examples do not automatically establish trade mark infringement, they may be relevant when assessing the likelihood of consumer confusion.

Would a reasonably prudent consumer be confused?

The question is ultimately broader than whether one individual made a mistake. US courts consider whether confusion is likely from the perspective of a reasonably prudent consumer in the relevant marketplace. The UK uses a closely related idea through the concept of the “average consumer”. The issue is therefore whether a consumer who is reasonably well-informed and observant in the circumstances would be likely to believe that Demon Hunter and KPop Demon Hunters are affiliated or commercially connected.

The level of consumer attention may also depend on the particular product or service. A consumer purchasing an expensive concert ticket may pay more attention to the identity of the performer, whereas a consumer purchasing inexpensive merchandise or streaming music may make a quicker decision. The relevant consumer and the circumstances of the purchase therefore matter.

A broader trade mark policy question

The dispute also highlights a broader trade mark policy issue. Trade mark law is intended to balance the protection of goodwill and brand recognition built by established businesses against the need to allow others to use ordinary language when creating new products, brands and forms of entertainment.

The Demon Hunter dispute is therefore about more than two similar names. As established brands and new entertainment franchises increasingly expand into overlapping areas such as music, live performances and merchandise, courts will continue to face difficult questions about the limits of trade mark protection.

If you would like to speak to one of our experts about trade marks or any other intellectual property issues, please get in touch with a member of the IP, Technology & Data team or your usual contact at Brodies.