Disney v. “MICKEY IS FREE!” Applicant — EUIPO Board of Appeal Rejects Public-Domain Slogan as EU Trademark for Clothing

Background

In January 2024, the first version of Mickey Mouse — the 1928 Steamboat Willie short film — entered the United States public domain, triggering widespread commentary about what rights in Mickey Mouse are and aren’t protected. Patent and copyright protection for the original “Steamboat Willie” Mickey is gone in the U.S., but Disney’s trademark rights in the Mickey Mouse character and name remain fully intact in both the U.S. and the European Union.

An applicant sought to ride the cultural moment by filing EU trademark application No. 19 069 735 for the verbal mark “MICKEY IS FREE!” for clothing items (t-shirts, sweatshirts, hoodies, jackets, and long-sleeved shirts) in Class 25. Disney Enterprises, Inc. opposed the application under Article 8(1)(b) of the EU Trade Mark Regulation (EUTMR), invoking its earlier EU trademark No. 18 790 923, which combines the words MICKEY, DISNEY, & CO. with a figurative representation of Mickey Mouse’s head. The EUIPO’s Opposition Division rejected the application in Decision B 3 229 556 (December 2025), finding a likelihood of confusion. The applicant appealed to the First Board of Appeal.

The Court’s Holding

The First Board of Appeal dismissed the appeal on May 21, 2026, and upheld the opposition. The Board found that a likelihood of confusion within the meaning of Article 8(1)(b) EUTMR exists, even though the visual similarity between the two marks is low.

The central issue was whether average consumers of clothing would understand the slogan “MICKEY IS FREE!” as a commentary on the partial entry of Steamboat Willie into the U.S. public domain, or would simply associate it with the Disney character. The Board held that understanding the slogan’s intended meaning — that Mickey Mouse is now “free” from copyright restriction — requires “a specific legal and cultural understanding” that is “highly unlikely in the case of average clothing consumers.”

Instead, the Board found at least an above-average degree of conceptual similarity: the dominant and distinctive element in both signs is the term MICKEY, which the average EU consumer strongly associates with the Disney character. Because the goods at issue are identical (clothing), and conceptual similarity was high, the overall likelihood of confusion militated in Disney’s favor despite the low visual similarity. The Board also rejected the applicant’s argument that the mark constituted independent artistic expression that should be balanced against Disney’s trademark rights.

Key Takeaways

• Public-domain commentary or cultural commentary embedded in a trademark application does not override trademark likelihood-of-confusion analysis in the EU — consumer perception, not applicant intent, is the test.
• When the dominant element of a contested sign is a term strongly associated with a famous character (MICKEY), high conceptual similarity can outweigh low visual similarity in the confusion analysis.
• The entry of Steamboat Willie into the U.S. public domain freed uses of that specific 1928 film, but Disney’s trademark rights in MICKEY MOUSE as a mark remain intact in the EU and U.S. alike, and those rights continue to block third-party trademark registrations for merchandise.
• EU applicants seeking to register public-domain commentary slogans should expect opposition from rights holders and should carefully assess whether the commentary angle will resonate with average consumers — or just confuse them.

Why It Matters

The “MICKEY IS FREE!” case illustrates the tension between copyright’s public domain and trademark law’s potentially perpetual protection. When a work’s copyright expires, the work enters the public domain for expressive and creative purposes. But trademark rights live on independently: Disney’s Mickey Mouse trademarks remain valid regardless of Steamboat Willie’s copyright status, and those trademark rights block competitors from trading on the Mickey Mouse brand even when using ostensibly commentary-laden slogans.

For brand owners, this decision reaffirms that trademarks serve a separate and complementary function to copyright, and that the expiry of copyright in source material does not open the door to trademark registration of closely associated terms. For creators and cultural commentators who want to capitalize commercially on public-domain works, it signals that putting the character’s name in a product slogan can still trigger trademark liability in the EU, regardless of the slogan’s intended meaning.

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