Potential Legal Challenge Looming Over Kirkman's "Outcast"

Comic Book Resources has learned that Valiant Entertainment plans to contest the name of "The Walking Dead" creator Robert Kirkman's latest Image Comics project, the recently announced supernatural horror comic "Outcast", because of a trademark Valiant owns on "Outcast," the title of a little-known one-shot released nearly 20 years ago.

"The Outcast" was released by the Valiant imprint of Acclaim Comics (a division of the video company Acclaim Entertainment, which purchased the original Valiant Comics in 1994) in 1995. Written by Jesse Berdinka and drawn by Norm Breyfogle, the comic told the tale of an alien who visited Earth at the dawn of man and left its DNA in a primate. Centuries later, that alien DNA is triggered within a descendent of that alien.

Acclaim registered a trademark on the term "Outcast." When Acclaim Entertainment went bankrupt in 2004, its assets were eventually auctioned off, including all of its intellectual property rights. The newly formed Valiant Entertainment purchased all of the Valiant Comics assets from the Acclaim Entertainment estate in 2005. There was a problem with the acquisition of the Valiant Comics intellectual property, however. All trademarks filed after 1989 have to be renewed every 10 years. The Acclaim Entertainment estate failed to do so with pretty much all of the Valiant Comics properties (including Outcast), so a separate company filed intent-to-use trademarks for all of the properties. Valiant Entertainment, naturally, contested this action and after two years of legal maneuvers, officially ended up with all of the previous Valiant's intellectual property in 2007.

Had another comic book company come out with a comic book titled "Outcast" during the mid-2000s, odds would be that Valiant Entertainment would be out of luck, as there was no one around to dispute the usage. Luckily for Valiant Entertainment, no one did so during that time period. In 2011, however, BOOM! Studios solicited for release a new series dubbed "Outcast." Valiant Entertainment informed them that it owned the trademark to the name "Outcast," and BOOM! backed off, changing the name of its comic book to "Valen the Outcast." Since Valiant Entertainment had not had a comic book for sale by the name "Outcast" in 16 years, BOOM! would have had a decent chance of fighting for abandonment of the trademark (as filing a renewal on a trademark does not automatically mean that a company has the trademark on a term if the company is not using the trademark in commerce, as the whole point of trademarks ostensibly is to protect consumers from being confused by similarly named products), but BOOM! likely found it easier to simply change the name of the comic book rather than pursue a legal struggle that it was not guaranteed to win.

Valiant Entertainment's position has strengthened since 2011, however, due to the rise of digital comics. Earlier this year, Valiant Entertainment began offering "The Outcast" #1 on comiXology as a digital release. Now Valiant Entertainment can legitimately claim that they are currently using the trademark in commerce. Therefore, it likely has a strong case to be made against Kirkman and his Skybound imprint over the title. I would believe that simply adding Kirkman's name to the title of the book (like "Robert Kirkman's Outcast") would be enough to protect Kirkman from a trademark claim in the courts by Valiant Entertainment, but I would imagine that Valiant would still continue to argue that that title is still too close to its mark. It will be fascinating to see if Kirkman pushes the issues in the courts by trying to name the book "Robert Kirkman's Outcast," or if he decides to change the name of the book entirely to avoid a conflict with Valiant Entertainment.

When reached for comment on the matter, Valiant provided the following: "Valiant Publisher Fred Pierce informed Skybound of Valiant's ownership of the 'Outcast' trademark at New York Comic Con." (Image's "Outcast," by Kirkman and artist Paul Azaceta, was announced the week of NYCC.)

Skybound declined comment on this story.

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