“Super-hero” isn’t Marvel’s property. They didn’t invent the term. They aren’t the only users of the term. It’s a public-domain word that belongs to all of us. Adding ™ super-hero is a naked bid to steal “super-hero” from us and claim it for their own.
Here’s a proposal: from now on, let’s never use the term “super-hero” to describe a Marvel character. Let’s call them “underwear perverts” — as Warren Ellis is wont to — or vigilantes, or mutants. Let’s reserve the term “super-hero” exclusively to describe the heroes of comics published by companies that aren’t crooked word-thieves.
(Via Slashdot.) Well, that’s one approach. Here’s another one: I’ll represent pro bono any company harassed by this claim, if you can get me to where you are as necessary (and provide local counsel if needed).
By the way: They each have a registered trademark incorporating the term SUPER-HERO: MARVEL SUPER-HEROES and LEGION OF SUPER-HEROES, respectively. Does that mean they both have the trademark SUPER HERO? Actually — it means the exact opposite! In fact, if these two “competing” companies are trying to establish some sort of joint right in this term, it could be that rare case of trademark misuse so often pleaded and so never found by the courts…
Please, let me be your Lex Luthor, your Dr. Octopus! I eat kryptonite for breakfast!
UPDATE: LIKELIHOOD OF CONFUSION® got a call from a reporter — from a pretty respectable outfit — who was considering doing a story on this. But though LOC is always good for a sound bite (they call me the “human pull quote”) she couldn’t get comments from an of the principals, even the victimized comic book publisher. (Update: Interview on NPR can be found here.) That leads me to believe a settlement could be in the offing, which makes perfect sense. DC and Marvel do not want this tested in court.
UPDATE: A sympathetic editorial in the LA Times; more here.
Originally posted 2010-02-12 08:15:14. Republished by Blog Post Promoter
5 Replies to ““They’re stealing the language!””
1. How can two competitors who operate in the same marketplace both have TM rights in the same term?
There is such a thing as concurrent use where there is a geographic difference (e.g. Company A operats stores in the Northeast, Company B operates stores in the Far West). Or where the goods are different (Delta Airlines and Delta Faucets).
Here the market is national (if not international) and the two companies market the same product (comic books) in the same price range. How can that word signify a single source?
2. Super-hero is clearly generic for a type of fictional character. It probably appears that way in a number of dictionaries and encylopedias.
(Here is what Dictionary.com says:
suâ‹…perâ‹…heâ‹…roâ€‚â€‚/ËˆsupÉ™rËŒhÉªÉ™roÊŠ/ Show Spelled Pronunciation [soo-per-heer-oh]
â€“noun, plural -roes. a hero, esp. in children’s comic books and television cartoons, possessing extraordinary, often magical powers
Actually, things are worse than the article makes out.
The PTO issued a joint registration this past August for SUPER HEROES to Marvel and D.C. Comics. No. 3674448. It’s for T-shirts, not comic books.
That’s really bad — the five year clock on incontestability is ticking.
So what’s next? Infringement action against SUPER-MAN over likelihood of confusion?
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