DC and Marvel — still winning Super Friends
John Welch has a report about an applicant for a SUPER HERO trademark registration for skin care productswho was bounced because, well, the owners of the existing SUPER HERO trademark –yes, that SUPER HERO trademark — pointed out that it doesn’t seem he really wanted to do anything other than, uh, have it.
That’s not enough:
Silver did not produce any documents in response to Opposers’ numerous document requests seeking marketing and advertising materials, sales documents, and market studies. In fact, he stated that he “has no documents concerning any effort to exploit or commercialize any product under SUPER HERO.”
Lacking a bona fide intent to use the “mark,” no one could save him now. What makes this super-interesting are the following two points. First, our redoubtable TTABlogger himself opines as follows:
I’m going out on a limb by predicting that this bona fide intent issue is going to be the next big thing in TTAB jurisprudence. I said as much in my post on the Honda v. Winkelmanncase (here).
I hope he’s right, because “getting the name trademarked” has become a preposterous waste of money and energy for a lot of people who should be focusing on “developing a business model and raising capital and doing some work.”
The second one, of course, is the niggling issue of the problems with the SUPER HERO registration and rights claims. As I discuss at length in the post linked to above (no, don’t bother — this one here), this is a pretty problematic trademark. Unfortunately, as John pointed out, there was no opportunity to in this procedural context to challenge the joint claim by Marvel and DC to both be the “single source of origin” that you always thought trademarks were, much less the question of genericness (see the comment by “Dan” at the TTABlog post). Until then, however, evil triumphs. But we know who always wins in the end, don’t we?