Can Super Heroes Be Trademarked?
A recent piece at the Guardian discusses the efforts of comics creator Ray Felix to resolve a dispute with Marvel Comics and DC Comics about his comic title A World Without Superheroes. The issue may shock you: SUPER HEROES is a registered trademark in the US for comics, so Felix’ use is—say Marvel and DC—trademark infringement.
I expected Batman, Spiderman, Iron Man, Green Lantern, and Incredible Hulk to be trademarked. But Superheroes? It didn’t seem possible. I thought of the Super Friends (which I used to watch religiously at 6:30 every Saturday morning). What would Aquaman do in a situation like this?
So I checked it out, and it’s true:
- US Registration 0825835 for SUPER HERO for costumes
- US Registration 1140452 for SUPER HEROES for toy figures
- US Registration 1179067 for SUPER HEROES for comic books and magazines
Plus a few others, all apparently owned by a subsidiary of Marvel Comics.
It doesn’t seem right, and maybe it isn’t. From the perspective of a trademark lawyer (that’s me), the trademark Super Heroes may well have become generic. That’s not a slight on Spiderman. It’s a legal term meaning that the words Super Heroes are no longer connected in the minds of customers with a particular seller—a particular source for comics books or toy figures.
Many famous brands have already become generic, or nearly so: When we talk about a thermos, or a band-aid, or a kleenex, we’re using a word that someone invented as a trademark (thermos brand vaccuum flasks; band-aid brand bandages, and kleenex brand facial tissues, to be precise). But then those words became so closely associated with a type of product that they were no longer associated with the single company that invented the term.
One could say that the same thing has happened with Super Heroes, if for no other reason than that everyone who reads about the troubles of Ray Felix trying to use the word Super Heroes in the title of his comic book is incredulous.
But the problem facing Mr. Felix is one common to small businesses everywhere. Marvel owns the trademark registrations above, so it is free to assert them—to say that they are still valid. If you want to disagree, you’ll have to do a boatload of research, get a federal judge to look carefully at the issue, and then rule in your favor. Even if we all think you’ll win, someone has to pony up $100,000 or more to make it happen.
Until then, at least we can sleep well at night knowing that Marvel Comic’s lawyers are keeping the streets safe for Superman.