Marvel & DC Claim "Superhero" as Trademark

Cory links to a story reporting that GeekPunk's critically acclaimed comic, Super Hero Happy Hour is being forced to change its name to Hero Happy Hour due to Marvel and DC claiming trademark rights in the name "Superhero."

Apparently, Marvel and DC "co-own" these rights and mutually sent GeekPunk a C&D letter threatening to shut them down if they didn't change the name.

Of course, I haven't seen the letter and don't even know if its authentic, but if it is, Marvel and DC are on very shaky ground.

First, "Super Hero" has pretty much become generic, don't you think? Even in comic books, I don't think consumers associate the word as a brand but more of a category of hero or comic.

Second, there are already other people besides Marvel and DC who have trademarks themselves in the word "superhero." For example, if you search the US PTO website here, you'll find a number of trademarks for comic books including BUFF CRONE, SUPERHERO and SUPERHEROS INCORPORATED.

Finally, this notion of "co-ownership" in a trademark makes no sense, even though its been around in trademark law for quite some time. When two companies co-brand a product, both can own the trademark rights. For example, if Amazon came out with its own special model of an iPod (licensed from Apple), both Amazon and Apple could "co-own" the trademark "Amazon iPod" because it reflects that both companies are the source of the product. Here, however, DC and Marvel compete with superhero comic books. In fact, as I understand it, there's quite a rivalry between their fans as to which publishing house is superior. Therefore, the term "super hero" doesn't tell you of a single product that both companies make together but rather a category of products in which the companies are major competitors. It would be like Pepsi and Coke attempting to "co-own" the term "cola".

Trademark law is supposed to be premised on the theory that if consumer know who makes what brands of products, they will be able to make intelligent choices in their purchasing decisions through brand differentiation. Here, however, "superhero" doesn't tell you which brand you're buying. It only tells you what kind of story you are going to read.

Sadly, this is yet another example of TM maximalists fighting to defend hollow rights out of the knee-jerk reaction to protect "value" in something that doesn't even exist beyond the piece of paper its written on. And in the meantime, both emerging companies like GeekPunk and the public lose.