EXCLUSIVE: Just over 2 months after Horizon Comics went after the comic giant and its Walt Disney Company parent over the Armored Avenger – Marvel has struck back, in more ways than one. “Neither the facts of nor parties to this dispute have any connection to Massachusetts,” said the defendants today over the copyright infringement case first filed on April 23 in the northeastern state. “As a result, the complaint in this action should be dismissed as inappropriately venued …or transferred” (read it here). Taking this approach, Marvel want the case from the Canadian-based plaintiffs and former Marvel freelancers transferred to New York if the court won’t toss it now.

In what could be a multi-billion dollar case, Horizon owners Ben and Ray Lai allege that Marvel and Disney stole the Iron Man armor look for the blockbuster Robert Downey Jr-starring pics from their Radix comics, which first appeared in 2001. In seeking the dismissal today, Marvel lawyers noted in a separate filing that “it is Plaintiff’s burden to demonstrate that venue is proper once a defendant has challenged venue by filing a motion to dismiss.”

“No party to this dispute is located in Massachusetts,” says attorney Nicole Kinsley. “Several are located in New York, and others at least have business contacts with New York that they do not have with Massachusetts. Plaintiff is located in Quebec, Canada, from which New York is more accessible, given the availability of direct flights. New York, therefore, is a far more convenient venue for Defendants and at least as convenient a venue for Plaintiff.”

iron-man-lawsuit-images-radixEven though the Tony Stark character has been fully metaled since not long after his 1963 debut in the comics, the Lai brothers have said that today’s big screen Iron Man only got his look after their series appeared. “From that time until the first movie in the franchise was released, the comic typically depicted Iron Man wearing simple spandex-like attire and minimal armor,” says complaint of 2008’s Iron Man and the 2010 and 2013 sequels and the other Marvel franchises Downey’s Stark is in, like The Avengers. “In contrast, the Films depict Iron Man wearing a fully mechanized suit of body armor.”

Kinsley, Michael Boudett and Paul Bork of Boston firm Foley Hoag LLP are representing Marvel, Disney, DMG Entertainment and the other defendants in this matter. Horizon is represented by Jeffrey Wiesner of Stern, Shapiro, Weissberg & Garin.