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Shazam! Vs. Captain Marvel: The Bizarre Battle Over a Name

Here is where we get into the wonderful world of trademarks vs. copyrights. A copyright is a legal right given to the creator(s) of an original work that give them control over how the work may be used by others. In the previous lawsuits, the owners of the Superman copyright (in this case, determined to be Detective Comics, Inc. after it purchased the rights to the character from Jerry Siegel and Joe Shuster) had control over how the original work (Superman) could be used. The courts determined that Wonderman and Captain Marvel were, in effect, unlawful copies of that original work, so they were not allowed.

Trademarks, on the other hand, are merely what they sound like, marks used in trade. National Comics had a federal trademark on the name "Superman," which means that it is the only company that can produce a comic book (or related work) with Superman in its title. The notion is nominally to protect the consumers, so if they purchase a product with Superman in the title, they know what they are getting in their purchase. Of course, while it is meant for consumer protection, it also serves as protection for the companies involved, as it makes sure that the companies are the only ones that can use valuable marks like Superman or Batman in the market.

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One way to show the difference between trademark and copyright is to say that you invented a comic book character who is the world's best building superintendent. You call your character Superman. He has nothing to do with the character from the Superman comic books, so you have not infringed on the copyright for Superman. Your original work is suitably distinct from the Superman original work. Okay, but even thought it is not infringing on Superman's copyright, you still would not be allowed to title your comic book "Superman," since National has a trademark on that term. Again, the idea is to avoid confusing the consumers. If they see a comic book called Superman, they want to be able to pick it up and know what they're getting.

Copyrights last for a federally mandated length of time. Trademarks, though, only last so long as you actually use the mark in trade (but if you continue to use them, then they can last essentially forever). If you don't sell a product with the trademark in the title, you are eventually determined to have abandoned the mark and thus others can begin to use the mark instead.

Well, as we mentioned before, Fawcett ceased publication of all of their comic books in 1953, so by the mid-1960s, it would be considered to be abandoned. In the early 1960s, a longtime comic book company that had begun life as Timely Comics took on the name Marvel Comics and became a big success...

In 1964, Marvel had launched a new series, Daredevil, using the name of a similarly abandoned trademark Golden Age hero and so Marvel now had the trademark on that title...

However, before Marvel could put out a Captain Marvel comic book, it was beaten to the punch by Myron Fass and his M.F. Enterprises, who released a bizarre comic book about an android who could explode his body parts away from himself (by saying "Split") and then reconstitute himself called Captain Marvel...

The book seemed design to just try to corner as many trademarked superheroes and villains as possible...

It went under by 1967 and Marvel quickly jumped in and introduced its own Captain Marvel, securing the Captain Marvel trademark for Marvel Comics...

So everything was settled now. The only thing that could cause any confusion is if the original Captain Marvel suddenly returned to comics...

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