"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!

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