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Interesting points from https://fingfx.thomsonreuters.com/gfx/legaldocs/myvmamnnavr/MARVEL%20DC%20SUPER%20HERO%20TRADEMARK%20petition.pdf https://fingfx.thomson

Interesting points from https://fingfx.thomsonreuters.com/gfx/legaldocs/myvmamnnavr/MARVEL%20DC%20SUPER%20HERO%20TRADEMARK%20petition.pdf https://fingfx.thomsonreuters.com/gfx/legaldocs/myvmamnnavr/... 5. In 1980—decades after the birth of super heroes—DC and Marvel jointly registered SUPER HEROES as a trademark. 6. 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. DC and Marvel are wrong. Trademark law does not permit companies to claim ownership over an entire genre. SUPER HERO is a generic term that should not be protected as a trademark. 7. Trademark law also does not allow competitors to claim joint ownership over a single mark. The purpose of a trademark is to identify a single source of goods and services. 20. DC has accused Superbabies of infringing DC’s “SUPER”-related trademarks, has filed an opposition to Superbabies’ trademark applications (TTAB Trademark Opposition No. 91290757), and has threatened further legal action. DC has asserted the exclusive right to use “the prefix SUPER followed by a generic term for a human being." There's also some examples of SUPER HERO used as a generic term by DC and Marvel. I know of some companies being famously strict about trademark use (example https://www.velcro.com/original-thinking/the-velcro-brand-trademark-guidelines/ https://www.velcro.com/original-thinking/the-velcro-brand-tr...), and yet these uses seem benign. For example, a splash at the top of a comic book "DCs BOLDEST new super-hero" (without TM, with dash). Now I have to be careful about using any of my company's trademarks. I'm not sure I fully understand how this example is generic and harmful.

hn_throwaway_99 2y ago
> 7. Trademark law also does not allow competitors to claim joint ownership over a single mark. The purpose of a trademark is to identify a single source of goods and services. I'm baffled how this was ever allowed in the first place. It's like Marvel and DC went to the trademark office and said "Yes! We'd like to collude to prevent any other competitors from using these terms." and the trademark office was like "Collusion it is! Have a nice day!"
- em-bee 2y ago
  you can license others to use your trademark. so one of them could have trademarked it and licensed it to the other in an exclusive deal.
  - hn_throwaway_99 2y ago
    But that seems to be clearly not what happened in this case, at least by the explanations in the court's ruling.
    - em-bee 2y ago
      i didn't mean to imply that it did, just that the idea of sharing a trademark is not as ridiculous if you consider that licensing a trademark i possible and the result would mostly have been the same.
- greatgib 2y ago
  I'm not surprised that you can pretend to do that in a trademark office, but I'm more surprised that it does not trigger an antitrust investigation by authorities as it is clearly the 2 dominant players colluding to prevent having any competition!
- thaumasiotes 2y ago
  What would happen if DC and Marvel established a body of organizations concerned with comics, which just happened to consist of the two of them and nobody else, and that body was the one holding the trademark? As far as I'm aware, that's a completely normal set of events, but the effect is the same.
  - acdha 2y ago
    I think that’d lead to the same challenges: it’d be trivial to show that usage of the term predated that organization by decades, and anyone making an argument about collusion or antitrust would be able to point to the existence of a closed group created by the top two competitors as evidence rather than a defense.
    - thaumasiotes 2y ago
      > it’d be trivial to show that usage of the term predated that organization by decades So what? How is that relevant? How long do you think the term "apple" predated Apple Records?
      - dragonwriter 2y ago
        The preexisting use unrelated to Apple Records products wasn't affected by their trademark, whereas with superhero it is the preexisting generic use that is directly targeted.
        thaumasiotes 2y ago
        Preexistence is still fully irrelevant. The generic use can come into being 50 years after the trademark does and it will still make the trademark invalid. Or it can die 50 years after the improper grant of a trademark and cause that trademark to become valid. A descriptive term can't be trademarked, and using "super hero" to refer to stories about superheroes is descriptive. But there is no chronological consideration.
        2y ago
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hn_throwaway_99 2y ago

> 7. Trademark law also does not allow competitors to claim joint ownership over a single mark. The purpose of a trademark is to identify a single source of goods and services. I'm baffled how this was ever allowed in the first place. It's like Marvel and DC went to the trademark office and said "Yes! We'd like to collude to prevent any other competitors from using these terms." and the trademark office was like "Collusion it is! Have a nice day!"

em-bee 2y ago
you can license others to use your trademark. so one of them could have trademarked it and licensed it to the other in an exclusive deal.
- hn_throwaway_99 2y ago
  But that seems to be clearly not what happened in this case, at least by the explanations in the court's ruling.
  - em-bee 2y ago
    i didn't mean to imply that it did, just that the idea of sharing a trademark is not as ridiculous if you consider that licensing a trademark i possible and the result would mostly have been the same.
greatgib 2y ago
I'm not surprised that you can pretend to do that in a trademark office, but I'm more surprised that it does not trigger an antitrust investigation by authorities as it is clearly the 2 dominant players colluding to prevent having any competition!
thaumasiotes 2y ago
What would happen if DC and Marvel established a body of organizations concerned with comics, which just happened to consist of the two of them and nobody else, and that body was the one holding the trademark? As far as I'm aware, that's a completely normal set of events, but the effect is the same.
- acdha 2y ago
  I think that’d lead to the same challenges: it’d be trivial to show that usage of the term predated that organization by decades, and anyone making an argument about collusion or antitrust would be able to point to the existence of a closed group created by the top two competitors as evidence rather than a defense.
  - thaumasiotes 2y ago
    > it’d be trivial to show that usage of the term predated that organization by decades So what? How is that relevant? How long do you think the term "apple" predated Apple Records?
    - dragonwriter 2y ago
      The preexisting use unrelated to Apple Records products wasn't affected by their trademark, whereas with superhero it is the preexisting generic use that is directly targeted.
      - thaumasiotes 2y ago
        Preexistence is still fully irrelevant. The generic use can come into being 50 years after the trademark does and it will still make the trademark invalid. Or it can die 50 years after the improper grant of a trademark and cause that trademark to become valid. A descriptive term can't be trademarked, and using "super hero" to refer to stories about superheroes is descriptive. But there is no chronological consideration.
        2y ago

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