"Superhero" Trademark FAQ
Since Boing Boing did a piece on it recently, the whole "DC and Marvel have a registered trademark on superhero" thing has been making the rounds in the blogosphere (I did a bit on it awhile back here), so I figured, while most of you probably already know the facts of the situation, some of you do not.
So I figure this would be a nice place to do a little FAQ about it, and open the comments section up for myself (or for other folks) to answer any remaining questions about it. Let's begin!
Q: What does it mean that Marvel and DC have a trademark on the word "Superhero"?
A: It means that companies cannot enter certain areas of commerce with the word/phrase "superhero"/"super-hero" as part of their product name.
Q: What products does this apply to?
A: Publications, but basically comic books and magazines. Also, cardboard stand-up figures, playing cards, paper iron-on transfers, erasers, pencil sharpeners, pencils, notebooks, stamp albums, and costumes
Q: Does this affect our ability to use the word superhero?
A: Only if you want to make a product that fits into those categories and sell it. So if you want to sell (you can make it for your own personal pleasure) a comic book called "Star Spangled Superhero Stories," you would not be able to. But if you want to refer to your characters as superheroes WITHIN the comic, you can do so. This is what allows DC to refer to their character as Captain Marvel WITHIN the comic, but they cannot use the name Captain Marvel in advertising or as the name of the comic, because Marvel has a registered trademark on that name.
Q: When did Marvel and DC do this?
A: 1979. They recently re-filed the trademark.
Q: How can Marvel and DC jointly own a trademark?
A: Essentially, what it came down to was that Marvel and DC, as they realized the amount of money available out there in licensing their works, they decided to trademark the word. However, both companies understood that they wouldn't have a chance by themselves, as both companies use the term. So they decided to work together against any other company out there trying to use the term.
Q: How do you GET a trademark on the word superhero?
A: Besides filing for a trademark, what Marvel and DC had to demonstrate was that, when consumers thought of the word "superhero," that they thought of DC or Marvel. Surveys would have proven this. Therefore, it was considered to be reasonable that if some other product called itself "Superhero," that a consumer would think the product came from DC or Marvel, which, in my opinion, is a reasonable claim. The original basis for trademarks were to protect consumers from bogus products that they were confused into thinking came from a more famous company. Over the years, it seems like it is instead protecting companies from their competitors, but the basic premise is "Would a consumer think this product came from Company A if it uses this name?" and if the answer is "You betcha," then it is likely that Company A will get a trademark on that word.
Q: Can't Marvel and DC just let some minor companies get away with the use? Does it really matter?
A: One of the problems with trademarks is that companies HAVE to defend the use of the term, or else risk losing the trademark protection. So if Marvel and DC began letting companies call their comics "Superhero ____," they would risk a court ruling that the term was no longer protectable, which was the case for such famous words as cellophane and kerosene, both once product names, but ultimately became known as generic words that any company could use (The most famous company who vigorously defends their trademark is Xerox, who love to insist that you use a Xerox copy machine to MAKE a copy, not make a xerox!").
Q: Are Marvel and DC evil corporations, trying to keep the little man down?
A: Perhaps, but their use of the trademark laws are really quite standard operating business for corporations. Now, that doesn't mean corporations aren't evil, but that's a whole different FAQ.
Thanks to Greg Schnieke, who recently posted an EXCELLENT reply on this topic on the Digg website. It said all the things I always tell people when this topic comes up, and the framing of his response heavily influenced how I framed this FAQ. Check out his blog here.
If there are any other questions, feel free to ask them in the comments section!
So I figure this would be a nice place to do a little FAQ about it, and open the comments section up for myself (or for other folks) to answer any remaining questions about it. Let's begin!
Q: What does it mean that Marvel and DC have a trademark on the word "Superhero"?
A: It means that companies cannot enter certain areas of commerce with the word/phrase "superhero"/"super-hero" as part of their product name.
Q: What products does this apply to?
A: Publications, but basically comic books and magazines. Also, cardboard stand-up figures, playing cards, paper iron-on transfers, erasers, pencil sharpeners, pencils, notebooks, stamp albums, and costumes
Q: Does this affect our ability to use the word superhero?
A: Only if you want to make a product that fits into those categories and sell it. So if you want to sell (you can make it for your own personal pleasure) a comic book called "Star Spangled Superhero Stories," you would not be able to. But if you want to refer to your characters as superheroes WITHIN the comic, you can do so. This is what allows DC to refer to their character as Captain Marvel WITHIN the comic, but they cannot use the name Captain Marvel in advertising or as the name of the comic, because Marvel has a registered trademark on that name.
Q: When did Marvel and DC do this?
A: 1979. They recently re-filed the trademark.
Q: How can Marvel and DC jointly own a trademark?
A: Essentially, what it came down to was that Marvel and DC, as they realized the amount of money available out there in licensing their works, they decided to trademark the word. However, both companies understood that they wouldn't have a chance by themselves, as both companies use the term. So they decided to work together against any other company out there trying to use the term.
Q: How do you GET a trademark on the word superhero?
A: Besides filing for a trademark, what Marvel and DC had to demonstrate was that, when consumers thought of the word "superhero," that they thought of DC or Marvel. Surveys would have proven this. Therefore, it was considered to be reasonable that if some other product called itself "Superhero," that a consumer would think the product came from DC or Marvel, which, in my opinion, is a reasonable claim. The original basis for trademarks were to protect consumers from bogus products that they were confused into thinking came from a more famous company. Over the years, it seems like it is instead protecting companies from their competitors, but the basic premise is "Would a consumer think this product came from Company A if it uses this name?" and if the answer is "You betcha," then it is likely that Company A will get a trademark on that word.
Q: Can't Marvel and DC just let some minor companies get away with the use? Does it really matter?
A: One of the problems with trademarks is that companies HAVE to defend the use of the term, or else risk losing the trademark protection. So if Marvel and DC began letting companies call their comics "Superhero ____," they would risk a court ruling that the term was no longer protectable, which was the case for such famous words as cellophane and kerosene, both once product names, but ultimately became known as generic words that any company could use (The most famous company who vigorously defends their trademark is Xerox, who love to insist that you use a Xerox copy machine to MAKE a copy, not make a xerox!").
Q: Are Marvel and DC evil corporations, trying to keep the little man down?
A: Perhaps, but their use of the trademark laws are really quite standard operating business for corporations. Now, that doesn't mean corporations aren't evil, but that's a whole different FAQ.
Thanks to Greg Schnieke, who recently posted an EXCELLENT reply on this topic on the Digg website. It said all the things I always tell people when this topic comes up, and the framing of his response heavily influenced how I framed this FAQ. Check out his blog here.
If there are any other questions, feel free to ask them in the comments section!
posted by Brian Cronin at 3/20/2006 10:37:00 PM
46 Comments:
In Japan, Toei markets the hour of television that plays it's Super Sentai and Kamen Rider shows as "Super Hero Time". So out of curiousity, what's the legal boundries of a trademark or copyright in terms of where (geographically) it applies? Is there even a procedure for international trademarks?
There IS a procedure for international trademarks, working through WIPO (World Intellectual Property Organization), but most companies do not feel it is worth the time and effort.
To wit, superhero is not an international trademark.
If this is anyone but Steve Allen, you're stealing my bit.
Cronin, thanks very much for posting such an intelligent, reasoned FAQ on this topic. As a professional editor with some passing knowledge of copyright and trademark law, I've had to explain it a few times myself, and you did an excellent job.
For the record, the legal department at my former employer (the "For Dummies" publisher) were never happy or vindictive when they had to send an 8-year old girl a Cease & Desist letter over her "Horseback Riding For Dummies" web site. They knew it was absurd and a bit sad. It was also their job. The initial letter was always polite and informative, never nasty.
Every so often there's a storm over this and I find myself wondering if the two publishers could create a quiet 'reasonable use' policy where they negotiate an agreement to liscence limited rights to using the trademark?
Because they look petty when they take action against small press books like "Super Hero Happy Hour" or when a game company like NC Soft asks for a list of trademarked names to ban as character names and Marvel pretty much sends them a dictionary. (Side question, can Marvel really claim trademark rights to a name like, say Marina? Not theoretcally, but specifically a case like Marina.)
Yeah, I know, following the letter of the law, yadda yadda. But these instances are really bad PR (and the later legal battle between Marvel and NC Soft -- which mixed trademark and copyright, IIRC -- made Marvel look like a publisher who's most creative minds belong to their legal team and not their writers) so I wonder if there's a middle ground between protecting your rights and looking like a bully.
"Side question, can Marvel really claim trademark rights to a name like, say Marina? Not theoretcally, but specifically a case like Marina."
Given that the character's name is "Marrina," probably not.
And you be welcome. It was because of my wanting to understand the differences between copyright and trademark that I decided to chuck it all and go to law school.
By the way, for those of you who actually go to check my blog, I promise there will be new content up within the week. Typing with two hands is more tolerable now and I'm hoping to get official approval from my physical therapist tomorrow.
I 'heard' somewhere during this go-round that DC/Marvel's trademark is on solid ground for "super hero" and "superhero", but the hyphenated "super-hero" was in greater doubt. Any substance to that claim?
Given that the character's name is "Marrina," probably not.
Let's say "The Wasp" then... unless I missed Janet headlining a comic in the recent years when I wasn't paying attention to Marvel's glut of titles.
That reminds me of another question... at what point does the publisher get in danger of losing a trademark for lack of use? Does a character appearing inside a book count, or is it necessary for identifying aspects of the property need to appear on the cover? If it's the latter, did team-up books work to satisfy that need?
But if you want to refer to your characters as superheroes WITHIN the comic, you can do so.
I'm not so sure of that one, actually. There may be something specific to the superhero trademark that differs from normal trademarks, as other companies hardly ever use the term even, as you say, within the comics. That's presumably why we get "posthumans", "Powers", "Wild Cards", "novas" and so on.
Or perhaps all these other companies are unreasonable afraid of calling their characters superheroes. Dunno.
Side question, can Marvel really claim trademark rights to a name like, say Marina? Not theoretcally, but specifically a case like Marina.
They can try, it seems. Paul O'Brien recently pointed out that the cover of Apocalypse versus Dracula suggests that Marvel are trying to trademark "Dracula".
I read an interview with Marty Abrams of the toy company MEGO, which in the 1970's manufactured comic book hero action figures under the name "The World's Greatest Super-Heroes!" that the reason for the joint trademark was because of his toy line.
The article was in one of a series of articles in Tomart's last year. If I get off my ass sometime tonight I'll go look for it.
"Let's say "The Wasp" then... unless I missed Janet headlining a comic in the recent years when I wasn't paying attention to Marvel's glut of titles."
Well, yes, but not across the board. A Wasp trademark, for them, would likely be only for the purposes of a comic title and other merchandising stuff (toys, possible movies or cartoons, etc.). If Wally Alan Saxby-Penrose wanted to call his bug farm business WASP, Inc., Marvel wouldn't be able to do a damn thing, because it wouldn't be related to the purposes for which they obtained their trademark.
"I read an interview with Marty Abrams of the toy company MEGO, which in the 1970's manufactured comic book hero action figures under the name "The World's Greatest Super-Heroes!" that the reason for the joint trademark was because of his toy line. "
I knew it was because of licensing, so that makes as much sense as anything.
"By the way, for those of you who actually go to check my blog, I promise there will be new content up within the week. Typing with two hands is more tolerable now and I'm hoping to get official approval from my physical therapist tomorrow."
I know that feeling! I had to keep this blog up for a month typing with only one arm, when I broke the other one!
"Every so often there's a storm over this and I find myself wondering if the two publishers could create a quiet 'reasonable use' policy where they negotiate an agreement to liscence limited rights to using the trademark?"
They can license the trademark, but I don't think a "reasonable use" policy would work for them, especially on a matter like the title of a comic book, that is just so ON point, that I don't see them having much leeway there.
"If this is anyone but Steve Allen, you're stealing my bit. "
You scared me for a bit, thinking that I had missed you doing a FAQ about the Superhero trademark issue!
"I 'heard' somewhere during this go-round that DC/Marvel's trademark is on solid ground for "super hero" and "superhero", but the hyphenated "super-hero" was in greater doubt. Any substance to that claim?"
None that I can think of.
Trademark protection usually comes down to reasonableness of confusion, and it is unreasonable to think that someone would think that a superhero was one thing and super-hero is something else.
Just like you're not going to get away with a character named Super-Man or Spiderman.
"I'm not so sure of that one, actually. There may be something specific to the superhero trademark that differs from normal trademarks, as other companies hardly ever use the term even, as you say, within the comics. That's presumably why we get "posthumans", "Powers", "Wild Cards", "novas" and so on.
Or perhaps all these other companies are unreasonable afraid of calling their characters superheroes. Dunno."
Since they couldn't use superhero in any of their advertisements, it made sense to try to brand their own name, like Ultraverse did with "Ultas."
Just like DC could call their character Captain Marvel within the pages of the comic, Image could call a character a "superhero" within the pages of the comic. Just as long as it wasn't being used as a mark of trade.
Let me answer/comment where I can:
First, I think there has been a misinterpretation regarding why "capes," Metas," and other references to super heroes have become popular of late. IMO, it has nothing to do with who owns what trademark, "super hero," "superhero," or "super-hero" can be used as many times as anyone wants between the covers of a comic book; it is only on the cover, where the phrase would serve as an identifying mark, that rival publishers are prevented from using the phrase. I think writers have been using other descriptive terms to avoid the juvenile connotation that "super hero" can evoke, not to avoid an allegation of trademark infringement.
Now, on with the show. Jeff R. said...
I 'heard' somewhere during this go-round that DC/Marvel's trademark is on solid ground for "super hero" and "superhero", but the hyphenated "super-hero" was in greater doubt. Any substance to that claim?
Personally, I believe that if Marvel/DC challenged the use of "super-hero" on a comic book cover, I think they would win. They could easily show that "super-hero" is a variant spelling recognized by consumers and that the use of that spelling by a competitor is a transparent attempt to attract consumers to the infringing product. Think of it this way: Would the Coca-Cola allege COKE was being infringed if a competitor released a cola named "Koke"? Of course they would and so would Marvel and DC. Of course, with DC already owning the trademark for LEGION OF SUPER-HEROES, they have a good start to an infringement allegation at the top.
Lyle said...
He actually asked a lot, too much to quote, so I direct interested readers to refer to his earlier comment, which I will now address.
Starting in the middle, a key thing to remember, and often the most difficult to differentiate, is the trademark law and copyright law are as different as water polo and basketball. The laws offer protection for different kinds of intellectual property and cannot really apply simultaneously to the same thing. Trademark law is consumer protection law, enacted to protect consumers from purchasing in error the wrong product because it has the same or similar trademark as another product. Think how confusing it would be if anyone could publish a magazine named Time; one company did it first and consumers now know what to expect when they see that word on the masthead of a magazine. Except for the competitor, who wins if a second publisher prints their Time?
A name, like Marina, cannot granted a copyright; that would be no different than trying to obtain a copyright for "tomato." However, if Dell wants to call its new mp3 player MARINA, that could be granted. IMO, did Marvel go a little far by stating MARINA was their trademark? I think so, but then when I did a quick search MARINA didn't come up as being owned by Marvel. However, if Marvel began publishing a Marina comic book or licensed a Marina action figure, then Marvel would be within their rights to attempt to register that trademark since they would be producing a consumer good that moved in interstate commerce. The same goes for "wasp." Marvel cannot attempt to copyright the word, but it can attempt to register the trademark in conjunction with a product it creates or for which it grants a license to prevent other companies from printing a competing comic book titled Wasp.
Does this mean that another company could not have a character named "Wasp?" No, but
If Marvel, DC, Disney, et al. look like bullies because they aggressively protect their intellectual property, don't blame them, blame the legal framework. They have to protect their trademarks lest they become so widely used that their value as a trademark has all the cachet of "murphy bed" or "escalator"; if too many slip by, the trademark slips into the public domain.
The middle ground is some kind of fee being paid to the trademark owner, but would Coca-Cola be willing to allow a small soda company the right to use KOKE for their cola for one hundred dollars a month? It is hard to justify, because Coca-Cola has spent too much time and money building the COKE trademark in consumer minds. If Coca-Cola isn't going to do it, why should Marvel or DC help their competition, even if it is a small publisher?
As for the mix of copyright and trademark laws, well it may appear to exist, but it really doesn't. I used to confuse the two also, until I learned what they really were and realized that people writing about them confused them, leading to my misconceptions. My law review article was on the topic of the protection of fictional characters as entities separate from the work they appear in; the stretching by the courts to keep them protected under copyright is near the breaking point, IMO, but that is a whole other topic.
mumble-bee said...
I read an interview with Marty Abrams of the toy company MEGO, which in the 1970's manufactured comic book hero action figures under the name "The World's Greatest Super-Heroes!" that the reason for the joint trademark was because of his toy line.
While I am glad Mr. Abrams has a healthly ego, the joint trademark application was filed in 1966 when our super-hero action figures were in the form of Captain Action wearing a Batman costume. At comicgeekspeak.com, discussing this topic, I presented my theory of the history of the joint ownership:
"Anyway, remembering a comic book in my collection, I did some research and found Super Heroes versus Super Villains published by Archie in 1966. I think that comic was the impetuous for Marvel and DC to jointly file for the 'super hero' trademark, which the companies did in that same year. Actually, considering that, in 1966, DC was still the industry leader, it was rather magnanimous for DC to include Marvel in the first place, but a united front to protect a valuable asset was probably seen as better than a court battle between the two that could have resulted in the phrase being declared a generic term.
"By the way, DC and Marvel applied for the trademark for 'super-villains' in 1982 and they were awarded it in 1985."
I know that it is frustrating when the ways things are butt up against the way we think they should be and I think it is even more frustrating when it happens in a creative industry like comics. I hope this helped clear up some things.
As for the mix of copyright and trademark laws, well it may appear to exist, but it really doesn't. I used to confuse the two also, until I learned what they really were and realized that people writing about them confused them, leading to my misconceptions.
Just to clarify, where I was talking about the two being mixed was the Marvel vs. NC Soft lawsuit where Marvel charged NC Soft of copyright and trademark violations. That made the case pretty confusing to discuss, since it required containgin the discussion to two seprarte bubbles. (So there'd be plenty of moments where someone would point out how the definition of copyright given earlier didn't match Marvel's claim of trademark infringement, forcing another break to explain the differences.) Plus, Marvel's lawyers had moments of getting creative with the definitions of the two.
(IIRC, one of Marvel's claims was that costume similarities between the game's lead character and two Marvel characters -- which, if I remember the discussion correctly, similar costume elements are copyright issues -- were claimed as a trademark violation because those similarities might infer that the product were an official Marvel product.)
The original complaint can be found here, it's interesting reading, especially when you compare the claims to the way things actually are in the game:
http://www.eff.org/IP/Marvel_v_NCSoft/
It really would have been fascinating to read how this would have been argued in court, because they were tacking lots of new media issues.
If Marvel, DC, Disney, et al. look like bullies because they aggressively protect their intellectual property, don't blame them, blame the legal framework.
Still, blaming the legal framework doesn't derail the train of really bad PR, which generates ill will among consumers. I'm a marketing geek and, while I see the need to protect the trademark (key to marketing), I keep wondering if there's a balance besides what comes off as a shrug and a mutter of "Not our fault, we havta."
Sure, it makes rational sense, but brand perceptions aren't rational and bad word of mouth travels much further.
In this particular case, I suspect a big part of the problem is that there's no "proper" term, save for the one that's owned. I mean if you started an analogy with "Xerox is to photocopy as superhero is to..." where do you go? It's not like DC and Marvel are buying the kind of ads you find Kleenex putting in magaiznes like Writers Digest saying "Remember, if you're talking about superheroes(TM) you're talking about DC or Marvel superheroes(TM). Otherwise you're talking about Extranaturally Powered Beings."
I hesitate to throw a tangent into this conversation, because it's the most intelligent discussion of these issues that I've seen, but I suspect that one of you legal experts could answer this: When my legal department gave all us editors training about trademarks, we were taught that trademarks could only be used as adjectives, never as nouns. So it's "KLEENEX brand facial tissue" or "ROLLER-BLADE brand in-line skates," never "a Kleenex" or "my Roller-blades."
How on Earth does that apply to "superhero"? "SUPERHERO brand...comic book characters"? What?
Incidentally, in our case, when I asked if Legal really wanted us to replace all references to "Windows" with "Microsoft Windows brand operating system," they just said, "Um, no," and that was the end of that discussion. So maybe I'm wrong about the whole adjective thing?
One thing that's been bugging me: Where does Invincible's use of "Probably the greatest superhero comic in the universe!" fit in?
Personally, I'm thoroughly unconvinced that this trademark would stand up in court. The proposition that the word "superhero" denotes the origin of a product seems plainly bizarre, especially given that there are no jointly-originated Marvel/DC publications to which it might relate. They're essentially saying that it's a word which points to one of two companies in the industry, and I don't for the life of me see how that's a badge of origin.
"Incidentally, in our case, when I asked if Legal really wanted us to replace all references to "Windows" with "Microsoft Windows brand operating system," they just said, "Um, no," and that was the end of that discussion. So maybe I'm wrong about the whole adjective thing?"
Perhaps because Microsoft basically has no chance of enforcing their trademark, as Windows is a descriptive term, and therefore, really should never have been given a trademark in the first place!
Recently, there was a case where it looked like Windows was going to lose their trademark when they tried enforcing it against some guy - so they dropped the case, and are currently in the same state the Fig Newton people are in - which is just avoiding the issue...hehe.
"One thing that's been bugging me: Where does Invincible's use of "Probably the greatest superhero comic in the universe!" fit in?"
I think Greg covered this a little bit earlier.
So long as it is not the mark of your publication, like "Superhero Stories," you PROBABLY will get away with it.
The mark is Invincible, the extra text is not.
"
Personally, I'm thoroughly unconvinced that this trademark would stand up in court. The proposition that the word "superhero" denotes the origin of a product seems plainly bizarre, especially given that there are no jointly-originated Marvel/DC publications to which it might relate. They're essentially saying that it's a word which points to one of two companies in the industry, and I don't for the life of me see how that's a badge of origin. "
Sure, there's always the chance DC and Marvel would lose in court, but I think they're in pretty good shape.
Customer surveys, I believe, WILL back up the whole "the word superhero is associated with these two companies." Ask 100 people to name a superhero, and at least 95 out of 100 are going to name a DC or Marvel character.
Customer surveys, I believe, WILL back up the whole "the word superhero is associated with these two companies." Ask 100 people to name a superhero, and at least 95 out of 100 are going to name a DC or Marvel character.
Also, if you show a non-DC or Marvel character (a non-homage) chances are good that the surveyed will identify them as a well-known DC or Marvel character. (I still remember watching Teen Titans with a friend who kept referring to Raven as "Storm". She's an intellegent woman, but to non-comic geeks the difference between DC and Marvel isn't so big and powers that look like a better known hero will get you called that hero... until a huge marketing department gets put behind you.)
Then again, what would the chances of challenging that trademark if the challenger asked people if they thought "superhero" referred speficiall to a Marvel or DC character?
"Customer surveys, I believe, WILL back up the whole "the word superhero is associated with these two companies." Ask 100 people to name a superhero, and at least 95 out of 100 are going to name a DC or Marvel character."
I think you're missing the point there. All that shows is that the best-known superheroes tend to be Marvel or DC characters. The best known search engine is Google, but that doesn't mean that the public think everything claiming to be a "search engine" is a Google product. Quite the opposite - it's a generic term which simply describes the product. The word "superhero" is exactly the same.
It's plainly not a badge of origin. If it were, it couldn't point to both Marvel and DC simultaneously when they don't actually have any shared product to which it could refer. The very idea is self-evidently absurd.
It's equivalent to Kodak claiming a trademark on "camera" or Xerox trying to trademark "photocopier." Yes, the company has an association with that word, but that's not nearly enough to make it into a trademark.
Ah, I get what you're saying now, Paul.
I still disagree, but at least know where you're coming from. I apologize for missing it before.
Anyhow, DC and Marvel do not produce "superheroes." They make products featuring costumed adventurers that they REFER to as "superheroes." The use of superhero would, however, be considered a descriptive mark. Under normal trademark law, a descriptive mark would NOT be granted a trademark, but I believe that Marvel and DC can demonstrate (and, I believe, HAVE demonstrated it to the Trademark office, leading to the granting of the registered mark) that the term has acquired distinctiveness, which would allow it to still become a registered trademark.
I believe (and I think that it is an accurate belief) that the term "superhero" has achieved the required "Secondary meaning" in the United States to be eligible for a trademark.
When someone thinks of a superhero, they undoubtably (which, as I said, we would be able to prove via the use of surveys) think of a product from either DC or a Marvel.
The product itself is not a superhero, like a Kodak camera or a Google search engine, but it is an costumed adventure character who is referred to as a "superhero," and the term "superhero" has become distinctly known as coming from DC or Marvel, just like how Roller Blade describes an in-line skate, but it has acquired secondary meaning as a brand of in-line skates, even though Roller Blade certainly is a descriptive term, no?
In fact, the very fact that other companies HAVE successfully referred to THEIR costumed adventurers as "Ultras" or "Capes" or "Metas" reinforces the idea that "Superheroes" are distinct to DC and Marvel.
"They make products featuring costumed adventurers that they REFER to as "superheroes.""
But they don't. Marvel hardly ever refer to their characters as superheroes in any of their stories. Their mainstream superhero line is simply titled "Marvel Heroes." I'm not convinced DC use the term any more frequently. The term "superhero" is almost invariably applied as a genre description, not in any sort of trademark sense. (In fact, Marvel practically disclaimed the term "superhero" as far back as the original HANDBOOK, which buries it in the glossary and dismisses it as tabloid terminology that none of the characters actually use.)
I can't think of any occasion in recent years when I've seen Marvel or DC use the word "superhero" in a trademark sense rather than in its normal English-language meaning.
(Except for the one blatantly obvious case: LEGION OF SUPER-HEROES. But that's just the one book, and certainly wouldn't be enough to se up the joint trademark that Marvel and DC claim.)
What if it's free?
If I were to make a comic titled, "The Superest Superhero" and put it up on the internet as free content, would I have a lawsuit on my hands?
Sorry, Paul, missed your reply.
Anyhow, Legion of Superheroes would NOT work, I agree, because DC has an actual SEPARATE trademark in place for Legion of Superheroes. So that would unlikely to be considered good enough.
That being said, all you really DO need is to use the mark in commerce period. So, one or two comics or trades a year or so with the term "Superhero" WOULD, in fact, be enough for Marvel and DC to maintain their rights to the mark. The key is to get the trademark in the FIRST place. Once you get it, and no one has challenged it for years, you are basically sitting pretty. Unless, of course, you allow the term to lapse into genericness.
Note how Marvel was able to maintain a trademark for Captain Marvel, even though the character did not have a monthly title for about 20 years.
And that's just for the publications aspect of it - they clearly constantly put out plenty of playing cards, albums, costumes, etc. with the term "Super Hero" on the products.
"What if it's free?If I were to make a comic titled, "The Superest Superhero" and put it up on the internet as free content, would I have a lawsuit on my hands?"
You cannot enter commerce with the trademark.
It would be a finding of fact as to whether publishing something on a wesbite is "entering into commerce."
In addition, there is the separate matter of dilution to worry about, which is slightly different from the standard trademark infringement.
Dilution is the charge when a company feels that someone is "diluting" their mark by confusing consumers into thinking the mark comes from the Company.
One notable dilution cases was PETA winning a case for the domain name PETA.com, which was taken up by a non-profit anti-PETA organazation. PETA argued that the use of the mark was diluting PETA's trademark, and they won the case.
So...would you have a lawsuit on your hands?
Probably not...but the option to do so WOULD exist.
I have a totally different question for you almighty responders.
Would I get in trouble if I invent a new "superhero" that has similar powers to an existing one (from marvel) but with a different life story, costume, name, etc...?
Example: a hero named "Tarantula". He has a black and blue costume, and has the power to produce spider webs. But his name is not Peter Parker, and his life story is totally original. Could that work?
The reason I'm asking is because I created a new "superhero" with an original life story but by doing some research on the net I found that Marvel had a similar superhero with a different name and costume. I thought it was unfair for me not to be able to continue with my story since my character came out of my head without knowing of the Marvel version.
I mean, lets face it, Marvel has pinned down almost every interesting combination of superpowers in their stories. Even taking from the antiques Gods of all kind.
What do you think?
Anonymous, Marvel has used the name Tarantula™ many times, further complicating your question. The latest Tarantula is Maria Vasquez who appears in Heroes for Hire™. This is something I wonder about as it seems unfair as well.
A company like Marvel will often use the same name for tons of different individuals over time. (and look how many publishers have had Captain Marvels over the years, including Marvel many times over!) And yet you try to do your character published independantly and run into roadblocks. I think this is why many Indy publishers give up and publish sci-fi, sword & sorcery and other genre characters instead.
There is a solution though, and that is to turn the disadvantage into an advantage and stretch your creativity. I have played City of Heroes (superhero MMO) online and some people give up and name their characters W0lver!nexxx, while others come up with actual iconic names. If you're out to be successful in comics I recommend you try the latter approach, good luck!
http://www.marvel.com/universe/Tarantula
To answer anonymous' question for real, NO you cannot copyright or trademark powers or even the details of a character's life story. As evidence I give you the Superman story, which is so widely referenced it has become our modern mythos (more people know Superman's life than that of Muhammad or Ulysses in the U.S.A.) So look at how his story is told and retold and parodied, from Invincible to Supreme Power to the pages of Cracked magazine which recently did a crushing parody comic.
Trademarking or copyrighting powers or descriptions would be like Phil Collins trying to copyright his drum sound from the 1980s.
Now i understand why Pixar named "Supers" to his superheroes-type characters in the "Incredibles"
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