Marvel and DC Enforce "Superhero" Trademark

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.

Ones and Zeroes

[a_nonamiss]

Reminds me of the old Onion article "Microsoft to patent zeroes, ones." Isn't the term "Super Hero" pretty generic?

Is it really so crazy?

[Kombat]

Before this thread is consumed by non-lawyers editorializing about what a legal travesty this is, let me first put forth a question: If this argument was about the term "Superman" instead of "Superhero," would it be any less absurd? I mean, surely we'll all agree that "Superman" is a clearly trademarkable name, and has been capitalized on by its creators for decades. But isn't the coined word "Superman" just as generic as the coined word "Superhero?" Aren't they both merely the concatenation of two relatively common words in the English language?

Let's just admit that they've created something new, and it's not entirely unreasonable for them to wish to protect their exclusive use of their creations.

"Superhero" as a trade mark?

[Opportunist]

Seriously? What's next, Disney copyrighting antropomorphic animals?

The concept of superheros goes back to Gilgamesh and Enkidu. Back then, they were deified, but since that's no longer really an option with monotheistic religions, what we have now is superheroes. They have godlike powers (can lift heavy things, can fly, can see through stuff, can forsee the future, and so on), they interfere with the human world and try to make things "right", in other words, they function like the gods of old times.

Sometimes they're even "human" enough to have some of the worse traits of ancient gods. Makes them less godly and more credible.

But copyrighting the very idea of having entities that are capable of executing extraordinary feats, I guess the church might have problems accepting that their angels are on the verge of being (c) Marvel as well.

Re:Is it really so crazy?

[Otter]

But isn't the coined word "Superman" just as generic as the coined word "Superhero?" Aren't they both merely the concatenation of two relatively common words in the English language?

If anything, "superhero" is more novel. "Superman" comes from Nietzsche, and the subsequent abuse of his terminology by the Nazis.

Re:Is it really so crazy?

[Vthornheart]

The shady part to me is that Marvel and DC claim co-ownership of it. Not to say that I'll point a stiff finger at them and accuse them of wrongdoing (though in an above post I poke some fun for the sake of humor), but I would like to know how they managed to "co-create" the term. Did they both happen to create it at the same time, or are they merely claiming co-creation as a way of allowing each other to have exclusive rights to an obvious term, at the detriment of smaller comic companies?

Perhaps someone has some insight into the history of the word "superhero" that might be helpful to this discussion?

So much for Truth, Justice and The American Way.

[blcamp]

And I'll probably get sued for this moment of lamentation...

But it's in the dictionary!

[ttfkam]

http://dictionary.reference.com/search?q=superhero [reference.com]

So they went after a bar, but not the dictionaries that list the incredibly commonly used word. Why? Because the bar makes money off the word? So do dictionary companies.

The dictionary is where we go for Scrabble help. It's the definitive answer to the question, "Is that a word?" Not a group of words or made-up words -- singular items of the language. They should not be subject to trademark, especially not in a completely unrelated business sector.

Also, trademarks must be enforced if they are to be kept. Marvel and DC didn't enforce it when it showed up in the dictionary. Unless they really want to remove it from the general lexicon, they should lose this trademark. Hell, they should lose this trademark period!

I am FirstPostman!

[Asklepius M.D.]

Faster than everybody else! Stronger than the weak! Able to leap to conclusions in a single bound! Sworn enemy of the dreaded RIAA! Destroyer of the Gates of hell! I'd have been a superhero if I weren't deathly afraid of lawsuits.....and girls :p

Re:Is it really so crazy?

[Anonymous Coward]

I think the difference is, and its a vital one in trademark disputes, it that superman is a brand. He's a character that's been developed over many years and even when people use the term "superman" or "supermen" to describe other people, they are doing a correct comparison to THE superman.

Superhero is a generic term, used to descriptively for a hole range of character, both comic both and not. The idea of heroes with super powers goes back to thousands of years, so the idea it's a unique trademark is more than a bit daft. The fact that it's so widely used in book, comic, tv and cinema outside of DC/Marvel, and that in the near 40 years they've held the trademark they've not defended it should mean they would lose any court case. But the idea of most Cease and Desists isn't to enter into a court battle, it's to scare people/companies who can't afford to go to court against a multi-national to cave in and give up something they agressor doesn't have the right to take.

Isn't this counter-productive?

[Aurelfell]

Marvel and/or DC must feel that this comic is stealing some of their market, or they wouldn't have bothered with this. I don't know what they were worried about though, since I read a fair number of comics, and I'd never even heard of Super Hero Happy Hour.

Of course, I have now . . . .

Re:Is it really so crazy?

[gowen]

I would like to know how they managed to "co-create" the term.

I would like to know why you think trademarks are related to creativity. Patents and copyrights cover creative expression, trademarks are about using extant or new words to brand your product. Ford didn't create the word Mustang, but they have a trademark on automobiles of that name. Apple didn't create the word "Macintosh", but they have a trademark on personal computers of that name. Adobe is a generic word for undried mud bricks, but try and market software under that name.

Well, you get the idea.

Re:"Superhero" as a trade mark?

[dpille]

If you don't defend a trademark, you lose it.

Only kinda. The parent post clarifies a fair amount (as in steering you away from patent or copyright claims) but misses the right question:

Does the relevant class of potential consumers (that is, the comic-book-purchasing public) understand the term "SUPERHERO" to function as an indicator of source, origin, sponsorship, or affiliation when used in association with comic books, and do any consumers that have that understanding believe that the source/origin/sponsorship/affiliation is with DC and Marvel?

Let me summarize a bunch of what the irrelevant who-used-it-first posters are thinking: no freaking way.

Life moves on.

[Saeed al-Sahaf]

Trademark laws exist to protect the consumer, not the producer.

Where you been the last few dozen, 20, 30, 40 years? Trademark laws exist to protect "intellectualy property" so the owner can profit. Way it is, way its been. News? No. Right? No. Life moves on.

Re:Underdog

[tgd]

Um.

None of those car companies have a trademark on the term "car".

There is, however, a trademark on the term "superhero".

So your post, while moderated rather positively, is quite incorrect in drawing some comparison between the two.

Passed into common use

[CarpetShark]

These words have become commonly used household terms now. I think the trademarks should no longer apply. Really... if someone wants to make a fan-flic called Superman 10, then why not? It's not like, by the time your product is a household word, you haven't made much money yet.

Re:Valid, your kidding me.

[Zordak]

So, I can make a trademark out of common language use?

I don't know, ask Apple (R) computers who own the trademark Macintosh (R) (a kind of apple, if you weren't aware). Maybe the next time you eat at Burger King (R), you should unleash your fury on the 17-year-old making $6.50/hr., which he used to buy his Nike (R) (a Greek goddess) shoes.

It's true that the best trademarks are made up words (like Microsoft (R) or Unix (R)). Then there is no crossover with regular usage -- your mark ONLY identifies your brand to anybody in any context. But that does not mean that a real English word cannot be a trademark. It depends on your market segment. Apple would not be allowable as a trademark for a brand of shiny red fruit, but it is perfectly workable as a trademark for a brand of computer. The operative question is whether it is identifiable to a specific brand by the consumer. The cross-licensing between DC and Marvel would appear to defeat that in this specific case. If it's that important to somebody, let him tell a jury and see what they think.

This is retarded

[ShieldW0lf]

Seriously, this is the dumbest thing I've ever heard. A trademark is a mark of trade. It's so you know who you're dealing with. If you buy Kleenex (TM), you know you're getting it from the same organization you did last time.

So if you hear "Super Hero Comic", do you know which organization you're dealing with? No, you don't. It could be either of two competing organizations that produced it. So it's not a trademark, it's just two big companies trying to keep competitors out. This should not be permitted.

Re:Let me ask you something

[Sancho]

Here's my line of thinking when I posed that question:

Ok, this guy's trying to refute this guy who claims that Marvel didn't coin the term "Superhero." However, all he says is that Superman was created in 1938. This doesn't directly refute the claim because "Superman" isn't the same as "Superhero". Now a couple of things are possible here:

1) He knows that they called him a superhero, but failed to mention it in his post. In this case, asking the question points out that this piece of information which is vital to connecting the argument was missing, which a) gives me the answer without any expended effort searching and b) might help that poster make better and more informative posts in the future, or

2) He doesn't know or knows that Superman wasn't called a superhero, at which point my question becomes a rhetorical refutation of his post. In this instance, I care less about the actual answer and more about pointing out the mistake in the post, as is fairly common on Slashdot anyway, as well as deflecting another attempt to post a true fact in order to create the impression that some other implication is true.

Ultimately, while I'm mildly curious to know whether or not Superman was called a superhero pre-1942, my curiousity doesn't extend to searching for some piece of evidence on the Internet to support that claim. You made the assertion without the key fact that makes it true, so it's not all that unreasonable to ask you to back up your implied claim. So if conversation is stimulated by my question and I happen to find out the answer, great. If not, well frankly, my life isn't going to be less complete.

Re:Look up in the sky. It's a flying bull. Ewwwww.

[WaterBreath]

I think it goes both ways actually. Both the consumer and the producer have a vested interest in ensuring that the consumer is buying what he thinks he is buying. The protection of trademarks works toward that goal. It means only the Coca-cola company can sell a product bestowed with the treasured Coke label (unless they give someone else express permission). And it means that the consumer who buys his beloved Coke can be confident he is purchasing it from the Coca-cola company whose product he has come to trust. (Replace "Coca-cola" and "Coke" with your favorite soda company and soda name, respectively, for full effect.)

To spell it out.... This protection benefits the producer, in that other companies aren legally prevented from stealing away their customers under false pretenses (as opposed to stealing them away by offering better product). But it also benefits the consumer, in that they can't be fooled into thinking they're buying a particular product they desire, but in reality be sold a competing product they have no interest in (even though it may, in reality, be the better product).

Zipper, Asprin, Superhero

[edward.virtually@pob]

Assuming for the sake of argument that D.C. and Marvel did invent the term "superhero", it has obviously lost its exclusivity to these companies in common usage. Much like Zipper and Asprin, which began life as trademarks but became "ordinary" words through usage and were properly ruled to be such. If the legal system still worked, I would suggest other comic publishers ignore D.C./Marvel's attempt to abuse trademark law to surpress competition. But since these days the court could (ignoring the relevent precident) rule in favor of D.C./Marvel . . .