Trademarks aren’t stealing language

There’s some hullabaloo turning up these days regarding the two biggest US comic book publishers, Marvel and DC, defending ownership to the term “superhero” (and variations thereof) as it applies to comic books. Let me make it clear right now that I think that Marvel and DC should not manage to hold that trademark, that it clearly has become a generic term. If you were to show average people issues of Nexus or Madman or Justice Machine or Spawn, they would identify them as “superhero comics” and would do so even if informed of the publisher’s identity. It’s just as generic as calling an apple red. Having said that, most of the arguments I’m seeing placed against Marvel and DC on this are poppycock

People are acting as though using some pre-existing term as a trademark is inherently “stealing language”, but they are only applying it to “superhero”. They make an argument that it’s a pre-existing word, but that is true of most comic book-related trademarks. If I were to publish a comic entitled MARVEL SUPERHEROES: SPIDER-MAN VERSUS DAREDEVIL, there are very few in comics circles who would not perceive me as trying to exploit the reputation built up by the company that is now a branch of Disney, and really only the break-Marvel-in-any-way folks  and the all-intellectual-property-is-evil folks would suggest that I’m doing nothing that should be legally wrong. And yet, while four of the five words of that title are trademarked for comics, none of the words are ones that were invented by/for Marvel. (I probably see one or two blinks out there over the word spider-man, but here it is in 1876, and you can find the term in everything from a Hardy Boys book to the work of Ralph Waldo Emerson.)

There is nothing illegitimate about the use of preexisting and common words for trademarks. Not everything needs to be Electrolux and Unisys. The consumer is protected by knowing that if they buy Tide detergent, Brawny paper towels, Saturn cars or Trojan prophylactics, they are being produced or approved by the companies that built the reputation behind those names, and its hard to say that it is particularly unfair that competitors cannot name their detergent Tide, as putting Tide on a detergent makes basically no sense except if you’re trying to exploit that reputation. That’s different from being barred from putting “orange” on your brand of juice, where it is a legitimate and understood descriptor for the nature of the content rather than for the producer… and “superhero” seems (to my non-lawyer eyes) to fall into that category as well.

Published in: on February 5, 2013 at 5:30 pm  Leave a Comment  

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