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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.
Yep... these boys dont mess around. I played in a band for several years called "boywonder" and when a band of the same name surfaced, we naturally went after trademark rights. DC Comics were quickly on us requesting that any product with the use of the name be sent to them for examination citing infringement.
We had released two albums under the name and they were very good about finally allowing us continued use of the name after about 8 months but, unfortunately, we had already changed names given a CD release and tour hanging over our heads.
Is it my imagination or has this never before been enforced? If this is the first time that it has been enforeced, can their hold on this generic term be great?
This really does seem as silly as a PB&J parent, but it sure might be legel in the eyes of the current system.
-- Prepared at the direction of, or to be sent to Legal Counsel, in anticipation of litigation. Attorney Client Pri
That lawyer is operating a cartel running a "restraint of trade" operation. If I start a "car" company, and the lawyer for GM, Ford, Toyota and Mercedes tried to stop me from "abusing their trademark", I'd be deluged by lawyers slavering for their piece of the antimonopoly action.
That's the kind of abuse that launched MCI against the AT&T monopoly, opened the telco industry to some competition, and enriched a generation of lawyers. This time, the comic can still do business while complying with the abusive Cease & Desist letter, while getting justice and bucks.
--
make install -not war
WTF? A "news" site generally deals with current events. Or at the very least, mentions the rather relvant fact that this is history, not news. Of course, that would be assuming that the Slashdot editors actually RTFA.
People already associate the term with super heroes other than Marvel and DC's. They associated the term with characters other than Marvel and DC's before they even filed. They trademarked a commonly used term; therefore, their trademark should not be valid.
They haven't trademarked the concept of a super hero, just the term. What I don't get is how one could trademark a classification or genre. The way it seems to me (and please let me know if I'm way off base), it's like if one record company could trademark a genre (let's say "punk") and then prevent all other companies from releasing music using the genre name, regardless of the fact that that's the correct classification... and also preventing people from making a "punk hour" at a bar even if they'll be having a live performance and the term is applicable. Does that seem like a good analogy?
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I'd rather be flamed than ignored.
I believe 'super hero' would fall under a genericized trademark. See here: http://en.wikipedia.org/wiki/Genericized_trademark
If the mark does not perform this essential function and it is no longer possible to legally enforce rights in relation to the mark, the mark may have become generic. A generic mark forms part of the public domain and can be commercially exploited by anyone.
nothing
I remember the GURPs supers book calling the SuperHeros 'Metahumans' becaues Marvel/DC threatened to sue. It sucked rocks then, and it sucks rocks now. It's ridiculous, a trademark identiifies a business. Marvel's a trade mark, so is DC. I don't know of any company called 'SuperHero'. Shit, why not let them patent it while your at it so the next time someguy flys around in tights they can sue.
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"They associated the term with characters other than Marvel and DC's before they even filed."
Well, it was filed several decades ago, so I'm not sure how you can declare this so certainly.
"They trademarked a commonly used term; therefore, their trademark should not be valid."
They trademarked a term that decribes a genre that one of them appears to have invented (DC with Superman, save the arguments, it's pretty much accepted and I don't care what you think otherwise) and didn't become common until well after it was used by them first.
It appears your objections are unrelated to what actually happened.
"The government grants you rights, not the other way around."-- beav007. Yes, these people really exist...
I still think that the term `super hero' is so generic (or has become so) that any trademarks on it should be invalid, but that's another issue. Trademark law (unlike patent or copyright law) has a provision that a company must protect it's trademarks or they'll lose them, and in this case I'd say the phrase was or is so commonly used that they should lose it, if they even have it.
I saw `if they even have it' because I did a search on the US Trademark site for a trademark on `super hero' or `superhero' and didn't find any on just those two words that applied to comics. I did find a few for things like `Marvel Super Heros', but nothing just on `super hero' related to comics. Perhaps I was looking in the wrong place or something?
Back in the day, we didn't have your fancy-schmancy foryums and blahgs on everyone's webpage. We had ourselves the NEWSGROUPS.
And we liked it!
In order to discuss super-hero based RPGs on the rec.games.frp.* hierarchy, our posts would get lost. I decided to act upon this and had rec.games.frp.super-heroes created. There was much (ridiculous) debate ([sarcasm]on the internet? NO...[/sarcasm]) regarding the name.
We couldn't used "Superheroes" because of the joint trademark. We couldn't use "Supers" because someone (idiot) thought it meant the forum was only for discussion of GURPS: Supers . So a news admin suggested that we hyphenate. I mean, it's not like we were selling anything.
I maintained the FAQ for years, but then that C++ Hybrid guy kept spamming the Newsgroup and most of us left to go to various other gaming forums.
I met the guys who write and draw "Hero Happy Hour" at comic conventions a couple times. The book is a fun read, and the creators are funny guys. They know they aren't going to make a fortune, they're just making a comic because they want to make a comic. I've never seen any publicity for their comic until now, which is a damned shame. "Hero Happy Hour" is easily the best small press/amateur title I've ever picked up.
Anyone who is into comics would do well to pick up whatever issues they still have in print, 'cause they're worth the money.
Anyway, I remember Marvel and DC claiming trademark on Super-Hero in the early 80s if not earlier, and just about everyone who writes about people with super-powers, who doesn't work for Marvel or DC, uses some other term to describe them. I can't believe they're enforcing their trademark on a couple guys whose comics have a print run that's probably 1/100 the size of an average "big name" book, but they've had the right to do so for over 20 years.
-- I wanna decide who lives and who dies - Crow T. Robot, MST3K
Nobody said anything about 'concepts'.
When they claimed trademark on the term "superheroes" they sure as heck did say something about "concepts". Unlike "Superman", or "Batman", or "Spiderman", the term "superhero" doesn't refer to anything in particular, but rather a generic set of things. Trademark is not like a patent, where the holder can use it to stake out a market segment and keep competitors out. THe purpose of trademarks is entirely for consumer protection, to prevent confusion in the marketplace. The fact that the term "superhero" exists in the common vernacular as a generic concept that nobody (other than a handful of jackass lawyers and executives at DC & Marvel) associates with any particular company's or companies' products, combined with the fact that their defense of said trademark over the last 40 years has been practically nil, obviously raises huge questions as to the validity of the trademark.
Conclusion: the Empire squashes the Federation like a bug. Accept it.
This makes good sense, except that we aren't talking about two distinct contexts of "super-hero", one ordinary and one related to trade. In contention is the term super-hero to describe a story of a fictional character with super-human "powers". If these two companies didn't start using this term first in that context, then their trademark shouldn't be allowed, IMHO.
If they did use it first, then we may be looking at a trademark distortion by the general public. For example, people commonly used the term Xerox to mean copier once upon a time. Many southerners use the term Coke to mean soda. Some people say Kleenex to mean tissue paper. The outrage comes from the fact that all of these names are obviously used for branding, and are clear trademarks, where super-hero is not.
I think of marvel or dc characters as members of the class "super-hero", just as Coke is of the class "soda", Xerox is of the class "copier", and Kleenex is of the class "tissue paper". If I make up a fictional character named "Gumdrop man" who shoots bullet speed gum-drops from his eyes and fights crime, and I describe him to people on the street, people will classify that character as a super-hero (or a lame-ass stupid super-hero.) If I then proceed to say, "You understand, this is not a Marvel or DC Comics owned character, but my own creation," you would be hard pressed to find anyone (except a Marvel or DC attorney) that is going to say, "Oh, well in that case, your lame-ass character is really a 'hero', not a 'super-hero'."
w2^7me out.
Nietzsche coined the term "Übermensch", which translates to "Overman" not "Superman". I'm pretty sure no Nazi every used the english word "Superman" either.
The literal translation between two languages is not always the most accurate one.
For example, up here in Seattle, a girl wanted a name for her industrial band. She decided to go for "Sub-Zero" (like the temperature), but in German. She picked "Unter Null," because it literally means "below zero." However, what it *actually* means in German is more accurately translated as "loser," ("less than nothing," I presume) or "shithead." Fortunately, her music is good and she was able to turn it into a bit of a joke.
Similarly, "Ubermensch" may literally translate as "Overman," but "Superman" is a more *accurate* translation of its meaning in English, since in our common usage, "over" and "super" are fairly distinct, even if literally they're almost the same word.
Personally, I think the Germans got "uber" as a corruption of the Latin "super."
"...always new atoms but always doing the same dance, remembering what the dance was yesterday." -Richard Feynman
It's depressing you even have to ask that question, 'man'. The message is simple enough, in a short span of a a few decades a nation which prided itself as being 'of the people and for the people' has been sold to the highest bidder. If you think the millions who returned from war after gambling their lives for freedom would have put up with the shit fed us by the bowlful today, you're dreaming. People here are actually defending the right of two meaningless companies to control by means of legal threat a word which has been in general use since before my family emmigrated three generations ago.