5
Feb/04

Do DC and Marvel Own Exclusive Rights in 'SUPER HERO'?


Via Nerdlaw, we find a link to this press release from a comic book implying that it received a demand letter from DC and Marvel, alleging that they jointly own the trademark SUPER HERO (and forced the comic book to remove the term from its title).

I didn’t see the actual demand letter and maybe the press release misstates some of the facts in the case, so I’ll only ‘hmmm’ silently to myself.

But I will add that one element of the definition of a trademark is that it designates a single source of origin.   While there is the concept of joint ownership, two unrelated companies holding themselves out as two unrelated companies tend not to meet this definition.

Also, DC disclaimed ‘SUPER HEROES’ in Reg. 2730169 for the mark POCKET SUPER HEROES.

BE THAT AS IT MAY: Cadence Industries, AKA Marvel and DC Comics obtained a registration for SUPER HEROES for comic books back in 1981.  It is now assigned to DC and Marvel as separately identified owners.  LEGION OF SUPER-HEROES is owned by DC.  MARVEL SUPER HEROES was registered by Cadence and assigned to Marvel.  Marvel owns MARVEL SUPER HERO ISLAND.

MORE FOOD FOR THOUGHT:  NY trademark lawyer Peter Sloane alerts me to the registration for SWISS ARMY KNIFE, which is jointly owned by Wenger and Victorinox, and the TTAB decision that discusses whether two unrelated companies selling competitive products can be joint-owners of the same trademark registration.  In pertinent part, the TTAB notes:

“Where two entities have a long-standing relationship and rely on each other for quality control, it may be found, in appropriate circumstances, that the parties, as joint owners, represent a single source.”

The SWISS ARMY KNIFE mark, as acknowledged by the TTAB, is a unique mark.  The Swiss Army had licensed Wenger and Victorinox to produce, er, swiss army knives, per its specifications, for over 100 years.

I don’t have access to any possible contractual relationship between DC and Marvel regarding quality control of the SUPER HERO mark.

Some blogging on this issue here, via Briefs on the Outside, and Newsarama, and the Wikipedia entry for Superhero.

As for genericness, the question is: what is the primary signficance of the term SUPER HERO to the purchasing public?

 

 

 

 

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