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Creator tangles with DC and Marvel over ‘super hero’ trademark

by  in Comic News Comment

More than three decades after Marvel and DC Comics initially registered their joint trademark for “super hero,” a small-press publisher is disputing their claims to the mark.

In an interview with Crisp Comics, Ray Felix of Cup O’ Java Studio Comix recounts receiving a cease-and-desist letter in September 2010 after he registered a trademark for his comic series A World Without Superheroes. Following more a year and a half of exchanges between Felix and the companies’ attorneys, DC Comics and Marvel Characters Inc. in March 2012 filed a formal opposition with the Trademark Trial and Appeal Board, which decides certain cases involving trademarks.

Their original registration for “super hero” and “super heroes,” which received widespread attention when it was renewed in 2006, covers a range of products, from comic books and playing cards to pencil sharpeners and glue. However, Felix argues DC and Marvel have overstepped the bounds of their trademark.

“I had heard in 2006 that Marvel and DC had jointly renewed their trademark on the word Super Hero,” he tells Crisp Comics. “Even still, jointly trademarking a word does not entitle any company or individual rights over the word as DC/Marvel had proclaimed. In their eyes they own every and any variation of the word regardless of spelling, variation in a statement or sentence in the English language or foreign. Registration marks do not work that way. It’s illegal and impractical. Also, registration gives you legal rights to word usage for a literal element. Meaning a specific product which uses the actual word to sell a product(s). Trademarks/registered marks are never secure and can always be brought into opposition by any party which feels that it is infringing on their registration rights.”

As CBR’s Brian Cronin noted in his 2006 superhero trademark primer, it seems unlikely a minor modification of “super hero” or “super heroes” — a hyphen, for example — would pass legal muster. “The insertion of a hyphen would not be enough to separate the product from the word superhero,” he wrote. “Just like you would not be allowed to use a mark like Ree-bok Sneakers.”

But in his filings with the trademark board, Felix also argues the inclusion of “Cup O’ Java Studio Comix” in his logo prevents and confusion with the books published by Marvel or DC, while “A World Without Superheroes” “clearly indicates that the characters in my publication are NOT SuperHeroes nor demonstrate behavior which is super heroic.” In a Jan. 12 petition for a hearing extension (the last available record of the case), Felix stated “It is my deepest to negotiate terms” with the publishers that permit him to keep his trademark.

As some may recall, in 2004 small-press publisher GeekPunk changed the name of its series Super Hero Happy Hour to Hero Happy Hour following objections by DC and Marvel.