Marvel and DC Enforce "Superhero" Trademark 430
An anonymous reader writes "GeekPunk is announcing that their flagship comic book title featuring superheroes patronizing their favorite bar & grill during their off-hours will now be entitled Hero Happy Hour beginning with the fifth issue of the ongoing series.
According to creator Dan Taylor, "The decision to change the title was brought upon by the fact that we received a letter from the trademark counsel to 'the two big comic book companies' claiming that they are the joint owners of the trademark 'SUPER HEROES' and variations thereof."
" Read the recent boingboing post for more background as well.
Since 1967 (Score:5, Informative)
Registration Date
March 14, 1967
Owner
(REGISTRANT) BEN COOPER, INC. CORPORATION NEW YORK 33 34TH ST. BROOKLYN NEW YORK
(LAST LISTED OWNER) DC COMICS, INC. CORPORATION ASSIGNEE OF NEW YORK 666 FIFTH AVENUE NEW YORK NEW YORK 10103
(LAST LISTED OWNER) MARVEL ENTERTAINMENT GROUP, INC. CORPORATION ASSIGNEE OF DELAWARE 387 PARK AVENUE SOUTH NEW YORK NEW YORK 10016
<grrr
old story? (Score:2, Informative)
Well then (Score:4, Informative)
For example, the following use (from Marvel's web site) in it's correct adjectival sense:
Throughout World War II, Captain America and Bucky fought the Nazi menace both on their own and as members of the superhero team the Invaders, which after the war evolved into the All-Winners Squad.
You see here, that the use "superhero" adjective could in theory at least be used to differentiate their "team" product from similar products of their competitors. On the other hand, the following is clearly an improper use of their own presumed mark as a noun (and despite the capitalization, a common noun):
If you've ever wanted to hear your voice come out of a Marvel Superhero's body-or if you are looking for a chance to break into the world of voice acting-then this is your chance!
This should read:
If you've ever wanted to hear your voice come out of a Marvel Superhero character's body-or if you are looking for a chance to break into the world of voice acting-then this is your chance!
Using it as a common noun (which they do throughout their web site, although it is sometimes capitalized) is tantamount to admitting the term is generic.
Yes, it is. (Score:3, Informative)
Superman, used as a common noun, is a variant of superhuman.
The former usage is clearly covered by trademark; the latter is clearly not.
In this case, the term 'superhero' is common enough to be outside trademark, in my opinion. It's a plain compound, and while the decomposition would refer to a superset of the composed meaning, it's pretty damn close. Anyway, the OED first lists the term being used in 1917 by Greenhill Press, so they would hold the trademark if anyone. The company appears to be defunct, though.
Re:"Superhero" as a trade mark? (Score:3, Informative)
Re:"Superhero" as a trade mark? (Score:5, Informative)
This had nothing at all to do with copyright. Nor is the concept being claimed here.
It is the word "Superhero" that is being claimed as protected by trademark law. Within the letter of the law, they may have a vaild claim.
That doesn't make them any less foul, though.
Also, I think that much argument can be made that they have long since lost any claim to the trademark. They've not been defending it at all until now. If you don't defend a trademark, you lose it.
TFA doesn't say but Marvel/DC jointly filed... (Score:5, Informative)
there is precedent of two companies sharing a trademark, but is supposed to be quite quite rare.
I am not sure how accurate this information as a lot it is from disparate sources, so someone please correct me if I am wrong.
Anyway, I don't see how Marvel/DC can claim a trademark on a word that has been in the popular lexicon for over fifty years.
Re:Is it really so crazy? (Score:2, Informative)
he overman is the individual who can overcome the herd instinct, who can take on values and morals not of the society. This is contrasted with one who wields power over others (although the overman, having overcome himself, will consequently dominate those who have not); the overman is about being "judge and avenger and victim of one's own law" rather than that of others or one's society. As such, the overman creates his own values.
See http://en.wikipedia.org/wiki/Nietzche#Overman [wikipedia.org]
Besides your should read his books anyway.He one of most Influental philosophers of the west.
Look up in the sky. It's a flying bull. Ewwwww. (Score:5, Informative)
Trademark laws exist to protect the consumer, not the producer.
If you buy a brown fizzy beverage, and if it says "cocacola" you should have some sort of confidence you're buying CocaCola brand of fizzy soft drink.
Is there some consumer confusion that your "superhero" is not a DC or Marvel brand of superhero? To say nothing of the fact if don't activly protect your mark you lose it.
Goog sez: "Results 1 - 50 of about 7,330,000 for "superhero""
If Marvel and DC jointly own the trademark on "superhero" I'd be saying the words "Anti trust". A LOT. And ignoring the C&D letter.
Re:Check the dictionary folks (Score:3, Informative)
Batman is a normal English word - it's a rank in the British Army. I'm not sure if the rank is still current or not, and I'm not certain if it's only the British Army. But it's definitely not an invented word for superheroes. In fact, I've always suspected the idea for the Batman character came from the silliness of the original batman word.
Cheers,
Ian
Re:Since 1967 (Score:3, Informative)
Seriously, put it to the test. To win all Cory needs to prove is that most people associate the word superhero with characters outside of Marvel and DC. Prove the trademark is truly diluted and therefore must be revoked.
Not to mention there's a workaround here. Stop using the word superhero. Just stop. Many writers have abandoned it. I believe Alan Moore used "Science Heroes" in his Promethea series. It would be nice to see everyone abandon the word and let it become stale. Then the term superhero would be associated with dusty and irrelevant characters from the past. After a while fans will cringe upon seeing it. It would represent overlitigious nonsense and hackneyed stories of men in tights beating up muggers.
Re:Look up in the sky. It's a flying bull. Ewwwww. (Score:5, Informative)
Re:Is it really so crazy? (Score:4, Informative)
Re:Is it really so crazy? (Score:5, Informative)
play in four acts by George Bernard Shaw, published in 1903 and performed (without scene 2 of Act III) in 1905; the first complete performance was in 1915. The Superman of the title is derived from the writings of Friedrich Nietzsche.
http://www.britannica.com/nobel/micro/733_84.html [britannica.com]
Note that the Cease and Desist is from 2004 (Score:3, Informative)
It's still not a good thing, but note that Super Hero Happy Hour received the message in 2004. It's just now being brought to everyone's attention- and as others have pointed out, they've had the trademark for some time. The original BoingBoing post noted that Marvel was using a museum [boingboing.net] to strengthen its trademark argument (the TM note at the bottom of the page).
Still, between this and the NCSoft suit, I'm not at all happy with Marvel nowadays. This is the kind of thing that could hurt their authors. The Underwear Pervert [blogspot.com] blog (Boing Boing's suggestion to replace super heroes) gives examples of where authors published by these guys have used materials in the public domain, which they should be able to do.
Re:Look up in the sky. It's a flying bull. Ewwwww. (Score:3, Informative)
Coined words are generally inherently distinctive, and prima facie registerable as trademarks, because they did not exist prior to the creation of the mark. Escalator did not "mean" moving stairs before the Escalator company created and trademarked the term. However, that it not the end of the discussion.
You can also take preexisting works and use them arbitrarily, like using Apple as a brand for computers. You can use them suggestively, like using AutoMeter as a brand for after market gauges for cars, like speedometers, tachometers, etc. You can also use them descriptively, if you can show that the use has acquired distinctiveness in association with the goods that you are selling. McDonald's is a famous example where the use was initially descriptive, acquired distinctiveness, and ultimately became a famous mark.
Re:Since 1967 (Score:3, Informative)
I've found it rather interesting to look at other games, books, fora, and so forth that are about supers and see just what terms they coin to get around the trademark. For example, City of Heroes talks about heroes, not superheroes.
This comic book is dead anyway... (Score:2, Informative)
I don't know that it matters too much for the conversation, but the last news from the website (dated Feb 23, 2005) says the comic book will no longer be published.
The article linked in this article is from January of 2004...
Little late for us all to be outraged...
Generic? (Score:4, Informative)
SUPERHERO [uspto.gov] is owned by David & Goliath, Inc. for use on clothing
SUPER HERO [uspto.gov] Oooh, this one's for skin cream
So it isn't reserved across everything, where is it reserved?
SUPER HEROES [uspto.gov] FOUND IT!!!
Goods and services: " PUBLICATIONS, PARTICULARLY COMIC BOOKS AND MAGAZINES AND STORIES IN ILLUSTRATED FORM [(( ; CARDBOARD STAND-UP FIGURES; PLAYING CARDS; PAPER IRON-ON TRANSFER; ERASERS; PENCIL SHARPENERS; PENCILS; GLUE FOR OFFICE AND HOME USE, SUCH AS IS SOLD AS STATIONERY SUPPLY;] NOTEBOOKS AND STAMP ALBUMS )). FIRST USE: 19661000. FIRST USE IN COMMERCE: 19661000"
So, they technically can ONLY press this against comic book writers (and other publishers).
Generic terms trademark (Score:2, Informative)
Re:"Superhero" as a trade mark? (Score:5, Informative)
For example, APPLE is a designation (a word), which is distinctive (arbitrary -- we'll get to what that means in a moment) used to identify the source from which computers (a kind of good) so marked originate (the Apple company) and which distinguishes those good and their source from others (e.g. Dell, IBM, Sony).
So distinctiveness is one of the necessary elements for trademarkability. There is a continuum of distinctiveness. From most to least they are:
Fanciful, arbitrary, and suggestive marks are always distinctive. Provided that the other requirements for trademarkability are met, they can make good trademarks.
Descriptive marks can either be merely descriptive, or can have acquired distinctiveness (also known as secondary meaning). The former are not distinctive, the latter are. In order to acquire distinctiveness, it has to be shown that the public associates the mark with the source of the marked goods and services, which is generally shown through various kinds of evidence. Even when a descriptive mark is distinctive, the non-distinctive form of the mark is still not protected.
Generic marks are never able to function as trademarks.
Genericide is what happens when the public stops considering a trademark as distinctive of the goods or services of a specific source, and starts to consider it to be a generic term for the goods or services as a class. Their change in perceptions kills the mark. Often this is the result of overwhelming success by the mark holder. By dominating an entire industry, their mark ends up becoming associated with the industry, rather than with the mark holder specifically.
For example, let's suppose that the proper name for a trampoline is actually a 'bouncing apparatus.' Thus, if you buy one from the Trampoline company, it is a Trampoline-brand bouncing apparatus. If you buy one from WidgetCo, it is a WidgetCo-brand bouncing apparatus. But if everyone thinks that the thing you buy is called a trampoline, regardless of what company you buy it from, then Trampoline loses their mark, and WidgetCo can start to advertise WidgetCo-brand trampolines.
It's kind of like how Honda Civics and VW Jettas are both kinds of cars. If the Civic name became generic for any car, regardless of manufacturer, people would talk about how the VW Jetta is a sort of civic. The word would have become a synonym for car. More specifically, it would be a word that describes the good itself (a car) rather than the origin of the good (a car that was made by Honda).
I went to www.thermos.com and there is a registered trademark symbol next to their name.
Well, first, there is a difference in contexts. Thermos is not generic for a manufacturer; it's generic for insulated flasks. (n.b. how they studiously avoid using the word thermos to refer to the good itself -- they use the term 'beverage bottle' a lot; this helps their case) Secondly, it's actually in a wierd case; some generic uses are allowed, and some aren't, and it's been i
Re:Underdog (Score:3, Informative)
Here [uspto.gov]
I didn't even have to search, its posted about 20 times in the comments of the story.