T Campbell's Blog
Writer of Penny and Aggie, Fans (also called Faans), Rip & Teri, Search Engine Funnies and A History of Webcomics. Experienced webcomics editor, currently seeking full-time work and working on strange and interesting new things...Friday, March 31, 2006
"...Very Well, We Will Cut The Hero In Half, And Give Half To Each Of You." "Okay." "Sure."
There's a bit of sound and fury over the issue of Marvel and DC's jointly held trademark of the term "super hero." Boing Boing stewed over the little "TM" in a science museum exhibit featuring Marvel "super heroes." Scott Kurtz responded with this strip, in which Francis stands in for Boing Boing and Brent apparently stands in for Scott's own viewpoint.
Brent has some fair points. This is not a new issue. The trademark was issued in 1979 and it's had a direct impact on the comic-book marketplace as recently as 2004.
Brent is also correct that "stealing your language" (Cory Doctorow's term) is a bit of an exaggeration-- you can SAY "superhero," you can use the word in certain contexts, you just can't use it to market certain products: comic books first and foremost, but also cardboard stand-up figures, playing cards, paper iron-on transfers, erasers, pencil sharpeners, pencils, notebooks, stamp albums, and costumes. Thanks to lawyer Brian Cronin for this and other insights.
Cronin makes the best argument I can find for the trademark... the notion that if you surveyed a large group of people at random about "super heroes," they would most likely think of a property of Marvel or DC's. Trademarks exist to prevent "confusion in the marketplace," or the selling of an inferior product off the good name of an existing brand. In 1979 this made sense. Parents buying comics might not have known the essential difference between Spider-Man and Archie Comics' The Fly when buying comics for their kids.
Unfortunately, the rules of comic books and superherodom have changed dramatically since 1979. First of all, the mere existence of Image Comics and Dark Horse Comics means that if DC and Marvel hadn't already acquired this trademark, they almost certainly couldn't get it. Second, everybody and his grandmother recognizes by now that the real money is in licenses for TV and movies, which the trademark doesn't cover... nor does it cover webcomics, which have a way of turning into print comics at the darnedest times.
But the biggest argument against the continued existence of the trademark is contained in the last panel of the PvP strip. Francis unconsciously rattles off four trademarks that have essentially fallen into public use, despite a well-publicized effort by Xerox to protect its own. Naturally, Xerox and Google and Coke and Frigidaire are only going to get REALLY uptight about this if they see a "confusion in the marketplace" issue. Okay, fine. But as Neil Purcell, author of a self-described "superhero webcomic," points out:
"...that's apples and oranges. Xerox and Google are very specific brand names. 'Superhero' is not used in the same context."
In other words, there is a Coca-Cola Company and a Xerox Corporation, but there is no Superhero Publishers, Ltd. The term is not synonymous with either or both companies.
The notion of a jointly held trademark has some precedent but it's a woolly one regardless. The notion that a generic term can become specific under set circumstances is likewise woolly but likewise not entirely without precedent. The notion that "superhero comics" are somehow only a quality product when they're published by DC or Marvel is a charming little relic of the late seventies, and it wouldn't stand up to twenty minutes of cross-examination in a federal court. Today's comic-book readers usually buy their OWN comics, and they can pretty much tell the difference between Teen Titans and Invincible all by themselves.
The trademark is frontier justice, a reflection of the little microverse in which comic books existed for most of the last twenty years, but with the sea change in the bookstores and the theaters, I don't think it's sustainable. DC and Marvel would be wise to quietly renounce the trademark. Otherwise, sooner or later, Image or someone will challenge them on it-- and then we'll see some fireworks-- and then we'll see a wave of publicity for non-Marvel, non-DC superhero books. That can't be what Marvel or DC want.
Brent has some fair points. This is not a new issue. The trademark was issued in 1979 and it's had a direct impact on the comic-book marketplace as recently as 2004.
Brent is also correct that "stealing your language" (Cory Doctorow's term) is a bit of an exaggeration-- you can SAY "superhero," you can use the word in certain contexts, you just can't use it to market certain products: comic books first and foremost, but also cardboard stand-up figures, playing cards, paper iron-on transfers, erasers, pencil sharpeners, pencils, notebooks, stamp albums, and costumes. Thanks to lawyer Brian Cronin for this and other insights.
Cronin makes the best argument I can find for the trademark... the notion that if you surveyed a large group of people at random about "super heroes," they would most likely think of a property of Marvel or DC's. Trademarks exist to prevent "confusion in the marketplace," or the selling of an inferior product off the good name of an existing brand. In 1979 this made sense. Parents buying comics might not have known the essential difference between Spider-Man and Archie Comics' The Fly when buying comics for their kids.
Unfortunately, the rules of comic books and superherodom have changed dramatically since 1979. First of all, the mere existence of Image Comics and Dark Horse Comics means that if DC and Marvel hadn't already acquired this trademark, they almost certainly couldn't get it. Second, everybody and his grandmother recognizes by now that the real money is in licenses for TV and movies, which the trademark doesn't cover... nor does it cover webcomics, which have a way of turning into print comics at the darnedest times.
But the biggest argument against the continued existence of the trademark is contained in the last panel of the PvP strip. Francis unconsciously rattles off four trademarks that have essentially fallen into public use, despite a well-publicized effort by Xerox to protect its own. Naturally, Xerox and Google and Coke and Frigidaire are only going to get REALLY uptight about this if they see a "confusion in the marketplace" issue. Okay, fine. But as Neil Purcell, author of a self-described "superhero webcomic," points out:
"...that's apples and oranges. Xerox and Google are very specific brand names. 'Superhero' is not used in the same context."
In other words, there is a Coca-Cola Company and a Xerox Corporation, but there is no Superhero Publishers, Ltd. The term is not synonymous with either or both companies.
The notion of a jointly held trademark has some precedent but it's a woolly one regardless. The notion that a generic term can become specific under set circumstances is likewise woolly but likewise not entirely without precedent. The notion that "superhero comics" are somehow only a quality product when they're published by DC or Marvel is a charming little relic of the late seventies, and it wouldn't stand up to twenty minutes of cross-examination in a federal court. Today's comic-book readers usually buy their OWN comics, and they can pretty much tell the difference between Teen Titans and Invincible all by themselves.
The trademark is frontier justice, a reflection of the little microverse in which comic books existed for most of the last twenty years, but with the sea change in the bookstores and the theaters, I don't think it's sustainable. DC and Marvel would be wise to quietly renounce the trademark. Otherwise, sooner or later, Image or someone will challenge them on it-- and then we'll see some fireworks-- and then we'll see a wave of publicity for non-Marvel, non-DC superhero books. That can't be what Marvel or DC want.
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Cronin makes the best argument I can find for the trademark... the notion that if you surveyed a large group of people at random about "super heroes," they would most likely think of a property of Marvel or DC's.
They'd also mostly think first of Pepsi and Coke if you asked them about "cola", and Levis if you asked them about "jeans". For the argument to have any moral weight, they'd have to associate the actual term "super hero" with M and DC rather than just the costumed-champions concept.
They'd also mostly think first of Pepsi and Coke if you asked them about "cola", and Levis if you asked them about "jeans". For the argument to have any moral weight, they'd have to associate the actual term "super hero" with M and DC rather than just the costumed-champions concept.
What about Hoover or Biro, terms that have become generic for "vacuum cleaner" or "ballpoint pen". Some of that is because they are shorter, of course.
I'd have to disagree about jeans, though. To me it just means "denim trousers" with no specific brand association.
I'd have to disagree about jeans, though. To me it just means "denim trousers" with no specific brand association.
Biro? I'm not sure I've ever heard of that -- as a generic or as a brand.
But yeah, I think Tim's point shows the fallacy of Cronin's argument. The Pepsi/Coke example is perfect.
But yeah, I think Tim's point shows the fallacy of Cronin's argument. The Pepsi/Coke example is perfect.
There seems to be a tendency (around here at least) for companies whose product names have become description for what they represent to rebrand themselves.
My favorite example is the "Scott Towel" brand. I don't even know how to call the square paper wipes other than by the name "Scott Towels". They've recently changed to brand to "Sponge Towel".
Maybe having a brand that ends up being the name of the item is not such a good thing. Maybe you stop thinking about the brand itself.
- "Honey, wouldn't you mind buying me kleenexes on your way back to work?"
- "Sure thing, what brand you like?"
In other thoughts, I don't know many people who thinks "super hero" means Batman. I don't remember "super hero" being used as a brand either.
And I don't know how Marvel or DC would truly benefit from it if it ever was.
My favorite example is the "Scott Towel" brand. I don't even know how to call the square paper wipes other than by the name "Scott Towels". They've recently changed to brand to "Sponge Towel".
Maybe having a brand that ends up being the name of the item is not such a good thing. Maybe you stop thinking about the brand itself.
- "Honey, wouldn't you mind buying me kleenexes on your way back to work?"
- "Sure thing, what brand you like?"
In other thoughts, I don't know many people who thinks "super hero" means Batman. I don't remember "super hero" being used as a brand either.
And I don't know how Marvel or DC would truly benefit from it if it ever was.
It could depend on where you're from; my brother-in-law (Englishman) uses "hoover" as a verb; it could be that "biro" as generic is also a Brit-ism.
"I don't remember 'super hero' being used as a brand either."
That's because it's not a brand and never has been, nor have DC and Marvel ever come close to using it as a true co-trademark.
The idea of a co-trademark is that two or more companies collaborate on a single product. Ironically, a good example would be DC and Marvel's own co-trademark of the Amalgam Universe! The Amalgam characters are jointly trademarked by DC and Marvel, and issued in a single collaborative product.
This, however, is not how the superhero trademark is used. DC and Marvel produce superhero comics separately and even compete with each other. This means that their trademark is is baloney, because they're not using it the way joint trademarks are meant to be used.
Now, someone might ask, "Why would the Tradmark and Patent Office issue a trademark, then?". Good question, but don't expect the Trademark and Patent Office to ever be on the ball. If you're thinking that that they would have stopped DC and Marvel from getting their phoney baloney trademark in the first place, think again! Absolute morons work at the trademark and patent office.
I used to work for an electrician who had a trademarked business name that was also trademarked and in use, ironically, by someone in the very same town. Or as James Randi points out, United States Patent number 6,004,596 is for the peanut butter and jelly sandwich.
Without crust.
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That's because it's not a brand and never has been, nor have DC and Marvel ever come close to using it as a true co-trademark.
The idea of a co-trademark is that two or more companies collaborate on a single product. Ironically, a good example would be DC and Marvel's own co-trademark of the Amalgam Universe! The Amalgam characters are jointly trademarked by DC and Marvel, and issued in a single collaborative product.
This, however, is not how the superhero trademark is used. DC and Marvel produce superhero comics separately and even compete with each other. This means that their trademark is is baloney, because they're not using it the way joint trademarks are meant to be used.
Now, someone might ask, "Why would the Tradmark and Patent Office issue a trademark, then?". Good question, but don't expect the Trademark and Patent Office to ever be on the ball. If you're thinking that that they would have stopped DC and Marvel from getting their phoney baloney trademark in the first place, think again! Absolute morons work at the trademark and patent office.
I used to work for an electrician who had a trademarked business name that was also trademarked and in use, ironically, by someone in the very same town. Or as James Randi points out, United States Patent number 6,004,596 is for the peanut butter and jelly sandwich.
Without crust.
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