Today, we look at whether DC is allowed to refer to Martian Manhunter's favorite chocolate sandwich cookie as an Oreo or not.

In Comic Book Questions Answered, I answer whatever questions you folks might have about comic books (feel free to e-mail questions to me at brianc@cbr.com).

In response to an article I did about Martian Manhunter and his love for Oreo cookies, longtime reader Garth G. wrote in to ask, "Did DC have the right to call the cookies Oreos?"

MARTIAN MANHUNTER AND HIS LOVE FOR OREOS

Everything started in the 1987 Post-Crisis Justice League revamp in Justice League #4 (by Keith Giffen, J.M. DeMatteis, Kevin Maguire and Al Gordon) when Captain Marvel is seen eating Oreos. Captain Marvel was played as this innocent character who didn't really fit in with the other, adult characters and Giffen and DeMatteis' way of doing so was to have him eating milk and cookies during team meetings. The team then expanded into an international squad and in Justice League International #8 (by Giffen, DeMatteis, Maguire and Gordon), the team traveled the globe installing new Justice League embassies. This issue is famous for being the one where Giffen and DeMatteis really started to lean into the sort of superhero sitcom approach that this run would be best remembered for and in #8, we learn that Martian Manhunter has become obsessed with Oreos after being introduced to them by Captain Marvel.

It would then become a recurring gag throughout the Giffen/DeMatteis that the otherwise very staid and serious Martian Manhunter was also obsessed with a chocolate sandwich cookie.

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THE CHOCO ERA BEGINS

Years later, Martian Manhunter received his own ongoing series and in a one-off comedic issue by John Ostrander, Doug Mahnke and Patrick Gleason, Martian Manhunter is telling his JLA teammates about a past incident where Blue Beetle and Booster Gold hid his cookies from him and it drove him insane, as it turned out that the cookies had some sort of chemical in them that made them addictive to Martians. The whole thing was a joke, though. In any event, though, with the cookies now featured on the cover, DC presumably wanted to be extra safe with any intellectual rights with Nabisco, so they gave the cookies a new design...

and started referring to them as "Chocos"....

This has been the case ever since. In fact, when the Martian Manhunter was killed during Final Crisis, in the issue with his funeral (Final Crisis: Requiem #1 by Peter Tomasi, Doug Mahnke, Christian Alamy and Nei Ruffino), Batman places a Choco on J'onn J'onnz' casket...

So obviously DC doesn't feel like dealing with any legal issues, and that's fair enough, but the question is, as Garth wonders, did DC have the right to use the brand name "Oreos" in their comics? There are four major areas where you have to worry about using brand names in your fictional works. Two of them are basically impossible to run afoul of, but the second two are enough of a concern than most writers just avoid it entirely.

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IS IT TRADEMARK INFRINGEMENT?

This is the big one in general for intellectual property, which is, you know, if someone else has a trademark and you successfully confuse the market with whether you are connected to that product through the use of the trademark. This is the big deal with Captain Marvel, as Marvel Comics owns the trademark on the brand name Captain Marvel and thus, DC cannot use "Captain Marvel" on any advertisements or covers or tie-in products for their character, who was ALSO named Captain Marvel.

Who wins in a contest between Shazam and Captain Marvel?

However, note that DC kept calling him Captain Marvel for YEARS, right? That's because trademarks only apply to marks in TRADE, which means stuff that would confuse consumers and in the case of comics and stuff like that, that would be the titles of comics, the covers of comics and stuff like tie-in toys. So DC kept making Captain Marvel comics and just named the series stuff like The Power of Shazam. Eventually, though, DC got sick of it and with a Shazam movie in the works, the company decided to just re-name Captain Marvel Shazam.

But anyhow, that goes to the heart of it - if DC could continue using their own Captain Marvel character despite Marvel owning the trademark to the name, then of course it wouldn't be trademark infringement if DC called Oreos Oreos in the stories. But again, they have to keep them off of covers, so that's why the Martian Manhunter #24 cover HAD to change them to a generic cookie.

IS IT TRADEMARK DILUTION?

This is a problem for lots of other brands, but it really doesn't apply here. Trademark dilution when using brand names is when you say "I made a xerox of that paper" instead of "I made a photocopy of that paper using a Xerox brand copier." If everyone starts using xerox as a verb meaning "to copy, Xerox could eventually lose its trademark protection, as the term would be considered generic. That happened in the past to a lot of products, perhaps most famously aspirin, which was initially a Bayer trademark, but now is just a generic term for pain-relieving medicine containing acetylsalicylic acid.

That wouldn't be an issue with the way DC was using Oreos. It was not using it generically, so no dilution.

IS IT DEFAMATION?

Now we get into the use where it gets a bit scary for fiction writers. What if you say something bad about Oreos? Then theoretically, Nabisco could sue you for defamation if you lied about its product and caused it to lose money as a result. In an old TV Legends Revealed, I wrote about how Sarah Michelle Geller was kind of sort of banned by McDonalds for appearing in a popular series of ads in the 1980s mocking Burger King.

The commercials used McDonalds name and trademarks and the company got an injunction, as it felt that the ads were defamatory and misleading (the commercials claimed that McDonalds burgers were fried while Burger King's were "Flame-broiled," but McDonalds disputed that claim).

When DC did a comic book about how Oreos drove Martian Manhunter insane, that could be a possible issue, so it makes sense that they decided to just call them Chocos instead, to be safe.

IS IT TRADEMARK TARNISHMENT?

This one is hard to prove, but it COULD come up here, which is that the company could argue that being associated with a comic book tarnishes its brand. A famous example would be the pornographic film, Debbie Does Dallas, which used Dallas Cowboys brand stuff in the film and the Cowboys sued (and won) on that trademark tarnishment angle. You could argue for parody protection and there is SOME parody protection, but it wouldn't really apply here. I don't think tarnishment would apply here, but just the FEAR of it POSSIBLY being an issue often leads to writers just going generic for brand names, a la Chocos.

Add it all together and I think DC would have been able to continue to call the cookies Oreos, but it makes perfect sense why the company didn't even want to bother with the CHANCE of Nabisco giving DC any guff over it, so just avoided it all by calling the cookies Chocos.

Thanks for the question, Garth! And thanks to Mark Fowler, for an EXCELLENT article on the topic that goes into much further depth.

If anyone else has a comic book related question, just drop me a line at brianc@cbr.com!

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