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Marvel, DC Lose ‘Superhero’ Trademarks After Failing To Respond To Cancellation Petition

from the super-duper dept

We have a hero in our midst, one that is responsible for freeing up the term “superhero” from its previous trademark imprisonment. If you don’t recall, Scott Richold is a British comic artist who produces the Superbabies line of comic books. Richold applied for a trademark for his comic only to find it opposed by both DC and Marvel. The two companies jointly held 4 trademarks to the term “superhero” and variations of that term. And if that strikes you as plainly absurd, given that the “superhero” is the name of an entire genre of fiction across many mediums, you’re certainly not alone.

As a result, Richold petitioned the USPTO to cancel those four trademarks, arguing that the terms have become generic. As detailed in a follow up post, I figured there were several ways that DC and Marvel might respond to the petition. They could have fought it, deploying a hefty legal war chest to try to simply bully Richold out of his attempt. Or they could have amicably released their marks, generating some amount of goodwill within the public. But I didn’t expect the companies to simply fail to respond to the petition entirely, which is exactly what happened.

As a result of the failure to respond, Richold moved for a default judgement, which would free the “superhero” term from trademark status and move it into the public domain. And, admittedly, to my surprise, the TTAB granted the default judgment.

A U.S. Trademark Office tribunal has canceled a set of “Super Hero” trademarks jointly owned by comic giants Marvel and DC at the request of a London-based comic book artist, according to a Thursday order.

The USPTO’s Trademark Trial and Appeal Board ruled for S.J. Richold’s Superbabies Ltd after Disney’s Marvel and Warner Bros’ DC did not file an answer to Superbabies’ request to invalidate the marks.

Interestingly, and somewhat frustratingly, the DC and Marvel sides of this equation aren’t responding to requests for comment. As a result, whether this failure to respond was part of a cost-saving plan in which the companies wouldn’t rack up legal fees for responses to what it knew would be a losing battle is unknown. Several commenters in previous posts suggested that might be what went on here, but we just don’t know. I would be surprised if that was indeed the case, but since most everything about this whole thing has surprised me so far, I suppose it’s possible.

But whatever the reason for the inaction on the part of DC and Marvel, the end result is that the term “superhero” and its variations are free once more for use across the different entertainment mediums.

Superbabies attorney Adam Adler of Reichman Jorgensen Lehman & Feldberg said in a statement that the ruling was “not just a win for our client but a victory for creativity and innovation.”

“By establishing SUPER HEROES’ place in the public domain, we safeguard it as a symbol of heroism available to all storytellers,” Adler said.

As it probably always should have been. Not all heroes wear capes, as the saying goes, so today we salute Scott Richold.

Filed Under: scott richold, superhero, superheroes, trademark, ttab, uspto
Companies: dc comics, disney, marvel, marvel comics, superbabies, warner bros. discovery

Superbabies Petitions TTAB For Default Judgement Claiming DC/Marvel Failed To Respond Over ‘Superhero’ Trademark Cancellation

from the wait-really? dept

Some stories just don’t end the way you expect, and the way this one supposedly might is fairly surprising. Earlier this year, we discussed how the creator of the Superbabies comic, Scott Richold, filed for cancellation for the trademarked term “Super Hero” and several variants, all jointly owned by DC and Marvel with the USPTO. As that post noted, the fact that the term is still trademarked at this point is absurd all on its own.

But when Richold’s company applied for a trademark on his comic series, the idea that DC and/or Marvel could tell him that his application for what would be a fairly unique trademark would result in trademark infringement is bonkers. “Super Hero” and its variants are plainly generic, to the point of being the term for entire genres of film and fiction in a variety of formats.

When Superbabies Ltd. put together its cancellation request for the Trademark Trial & Appeal Board (TTAB), it submitted the filing with all kinds of uses of the term that had gone unpoliced by either DC or Marvel. In fact, the filing even included several instances of employees of DC and Marvel using the term in a way that demonstrates its generic nature.

Now, I figured there was a couple of ways this would play out. The most likely was that DC and Marvel would throw its enormous legal warchest at Superbabies Ltd. to try, and perhaps succeed, in making this all go away due to the cost of the fight. The second, far less likely outcome would have been DC and Marvel admitting the mark is too generic to be worth fighting over and simply agreeing to rescind those marks.

What I never expected was for DC and Marvel to simply fail to respond to the TTAB. But that’s what Superbabies Ltd. has indicated happened in its petition for default judgment earlier this month.

Petitioner Superbabies Limited (“Petitioner”) respectfully submits this motion for default judgment. In support of its motion, Petitioner states as follows:

1. On May 14, 2024, Petitioner filed its cancellation petition in this matter.
2. Under the Notice of Institution, Respondents (DC Comics and Marvel Characters, Inc.) were required to answer the petition by June 24, 2024. 2 TTABVUE 3.
3. On June 14, 2024, Respondents filed a motion to extend their Time to Answer to July 24, 2024. 4 TTABVUE. The motion was granted. 5 TTABVUE.
4. On June 20, 2024, counsel for Respondents entered a notice of appearance. 6 TTABVUE.
5. As of the Date of this Motion, Respondents have not filed an Answer to the Petition, nor have they requested any additional extensions of time to respond. Respondents have defaulted.

When I saw this and then conferred with our own Cathy Gellis, I had to go to the USPTO site and look up the cancellation case myself. I’m still wondering if there isn’t some sort of mistake here, or miscommunication, or failure to log a document, but the history of documents in this case does not show any response from DC or Marvel after the request for extended time.

If that’s how this story ends, it’s nearly as incredible as any super hero comic that either company has produced. And I would imagine that there are some executives very unhappy with their legal counsel. Though, also, even if there’s a default judgement, Marvel & DC could likely re-engage. But for now, it appears they have not.

And if it frees the obviously generic term “Super Hero” from the restrictions of trademark law, well, perhaps this isn’t the outcome we expected, but it’s the outcome we deserve.

Filed Under: default, super hero, trademark, ttab
Companies: dc, disney, marvel, superbabies