Like a comic book villain, the nearly two-year old copyright lawsuit over Iron Man’s armor has been knocked down but not knocked out and will fight on.

A federal judge in New York yesterday handed Marvel and Disney most of the dismissal of Horizon Comics action over the Armored Avenger that they had sought. However, while Iron Man’s outfit was seen by U.S. District Judge J. Paul Oetken to be full of “dissimilarities” and “differ in significant respects” from that of Horizon’s Radix comics, the pose of a poster for 2013’s Robert Downey Jr. starring Iron Man 3 blockbuster was not.

The motion is granted in part and denied in part,” Judge Oetken wrote in his March 27 opinion and order (read it here) over the character Marvel first introduced in 1963. “This is not a case where only non-copyrightable elements exist in the work, nor it is one where the court can conclude, at this stage, that ‘no reasonable jury, properly instructed, could find that the two works are substantially similar’ based on their ‘total concept and overall feel,’” he added.

As you can see, the poses do look alike – but is metal clad kneeling copyright? Obviously, that’s an overly simplistic take on the case but at its base that will be for the courts and a jury to decide now down the line.

Which means the case that Horizon owners and former Marvel employees Ben and Ray Lai first launched in April 2015 against the media giant and has been moved to a couple of jurisdictions lives on. While that will obviously provide a glimmer of hope to the Lais, who launched their Radix series in 2001 and worked for Marvel on comics like The X-Men in and around 2005, it is a stumble for Marvel in what seems like it should have been a easy win. The company first sought a dismissal of the initially Massachusetts filed case. or to have it moved, back in June 2015. Dismissed on jurisdictional grounds in early 2016, the Lais refiled the case in federal court in New York a few months later.

Here in 2017, Marvel did not respond to request for comment on yesterday’s opinion and order.

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Nicole 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.