It should come as no shock to anyone when I say that DC Comics and Marvel both behave in a very aggressive manner when it comes to all things intellectual property. These two companies have engaged in all kinds of draconian behavior when it comes to everything from copyright to trademark. But one thing that somehow escaped my attention all the years I’ve been writing for Techdirt is that those two companies also jointly hold a trademark, granted by the USPTO, for the term “Super Hero,” as well as several variants. You can visit that Wikipedia link to get some of the backstory as to how this all came to be, but, suffice it to say, that the term “super hero,” at this point in history, is obviously generic. Hell, it refers to an entire genre of movies, if nothing else.
Well, one comic artist in London is attempting to challenge that trademark with the USPTO, seeking to have it and its variants canceled entirely.
Scott Richold’s Superbabies Ltd told a USPTO tribunal, opens new tab that “Super Hero” is a generic term that is not entitled to trademark protection, according to a copy of the petition provided by Superbabies’ law firm Reichman Jorgensen Lehman & Feldberg.
Representatives for DC and Marvel did not immediately respond to requests for comment.
“By challenging these trademarks, we seek to ensure that superheroes remain a source of inspiration for all, rather than a trademarked commodity controlled by two corporate giants,” Superbabies’ attorney Adam Adler said in a statement.
Now, this is all coming about because DC Comics accused Superbabies Ltd. of trademark infringement when it caught whiff of the company’s own attempt to trademark its comic book name. But the idea that the term “Superbabies” or “Super Hero” could be monopolized for any market at all via trademark law is, at this point, absurd. And yet both DC and Marvel have wielded their trademarks many times in the past.
“DC and Marvel claim that no one can use the term Super Hero (or superhero, super-hero, or any other version of the term) without their permission,” the petition said. “DC and Marvel are wrong. Trademark law does not permit companies to claim ownership over an entire genre.”
I would argue that the term wasn’t particularly unique as an identifier back when it was first granted over 100 years ago and certainly isn’t now. When you hear the term, you might think of certain super heroes from either Marvel or DC. Or you might think about the many, many super hero characters out there that are not owned by those companies. The point is that the term is ubiquitous at this point.
Will the USPTO give serious consideration to canceling DC and Marvel’s joint trademark? I’m not sure, but it certainly should.
