When “Super” Isn’t So Super: The Trademark That Lost Its Powers
In a plot twist worthy of any comic book, the titans of the superhero world—Marvel and DC Comics—have recently faced a major setback. As a result of responding to a trademark cancellation proceeding, they’ve lost their trademark rights to the terms “SUPER HERO” and “SUPER HEROES.” As a result of a 116-page challenge to the SUPER HERO registered mark, claiming in part the terms are generic, the registration for SUPER HERO has been cancelled. That’s right, folks! The once-mighty trademark has been rendered about as powerful as a soggy paper towel!
A Brief History of the Super Hero Trademark
For decades, Marvel and DC held onto their “SUPER HERO” trademarks like they were the last slice of pizza at a party. Registered back in 1967, these trademarks gave them exclusive rights to use the term in all sorts of commercial endeavors. Like bouncers at a superhero club, pouncing on anyone who dared to use “SUPER HERO” without permission. But let’s be real—over the years, common use of the term “SUPER HERO” has been as common as your neighbor’s cat lounging on your porch. It’s hard to argue that it wasn’t already teetering on the edge of genericide, when the term is considered a generic term. After all, how many times have you heard someone say, “I want to be a super hero” without thinking of it as a source identifier for Marvel or DC? It’s practically a rite of passage!
The Super Hero Kryptonite
S.J. Richold is a British comic artist with a flair for the dramatic and an even bigger flair for irony. When Richold tried to trademark his own comic series called “Superbabies,” he found himself facing the mighty Marvel and DC. Instead of backing down, he decided to challenge the giants in the Tradmeark Office —think David vs. Goliath, but with more spandex. Richold’s attorney, Adam Adler, filed a 33 page petition that reads like a graphic novel in a trademark cancellation proceeding, with the Trademark Trial and Appeals Board (TTAB) seeking cancellation of the existing “Super Hero” trademarks. And guess what? Marvel and DC didn’t even bother to show up! They missed their response deadline in the trademark cancellation proceeding like a kid missing the school bus. Talk about a superhero-sized blunder! As a result, their SUPER HERO trademark registration has now been cancelled. While four of the DC/Marvel federally registered trademarks have been cancelled, we will have to wait to see if they intend to enforce any common law or unregistered trademark rights to the SUPER HERO terms.
No Need to Fear, Underdog is Here
With no response from either comic giant, Richold’s underdog legal team swooped in faster than Spider-Man on a web-slinging mission. After Marvel/DC failed to file an answer in the trademark cancellation proceeding, Richold’s attorneys filed a motion for default judgment which was recently granted. As a result, Richold has secured a default judgment from the USPTO, effectively canceling four of the SUPER HERO trademarks that had been held for decades. Just like that, “SUPER HERO” became available for everyone who wants to don a cape—no permission required!
Time to Unleash your Super Power
So what does this mean for you and me? Well, here are some amusing implications:
- Creative Freedom: Independent creators can use “SUPER HERO” without DC or MARVEL, in reliance on their registered mark, sending a cease-and-desist letter “faster than a speeding bullet.”
- Branding Bonanza: Companies can now use the term “super hero” for their ! Want to sell super hero-themed cat litter? Go for it! Super Hero Litter: Because even cats deserve to save the day.
- Innovation Explosion: With fewer trademark barriers, we might see some wild new stories emerge—like “The Adventures of Captain Couch Potato” or “The Amazing Man Who Could Only Fly After Eating Tacos.”
- Legal Precedent: This case could inspire others to challenge other long-held trademarks that may have become too generic—watch out “Kleenex,” your days might be numbered!
- Marvel and DC’s Strategy: The fact that they didn’t respond raises eyebrows. Were they too busy planning their next blockbuster? Or did they think letting it go was an undercover strategy? Either way, it’s one for the comic book history books!
- Is there more? Like any good super hero story, there is always more to come. There are still oppositions related to the registration of the SUPER BABIES trademark involving dozens of Marvel and other trademarks which have been asserted. In fact, recently, Richold’s attorney’s filed a motion to force Marvel to provide discovery, indicating this saga has more to come.
Reactions from the Comic Community
Comic enthusiasts are buzzing with excitement over this development. Adam Adler, Richold’s attorney, declared it a “victory for creativity.” Meanwhile, fans are already brainstorming new superhero names—how about “Captain Obvious” or “The Incredible Mild-Mannered Accountant”? While Marvel and DC still hold plenty of trademarks for their iconic characters (you can’t take Spider-Man away from them!), this ruling opens up a whole new world of possibilities.
Conclusion: The Superhero Landscape Just Got More Interesting
In conclusion, the trademark cancellation proceeding related to Marvel and DC’s “Super Hero” trademarks is nothing short of legendary—like Thor’s hammer falling into the wrong hands! It serves as a reminder that even giants can stumble (or forget to show up). As we watch this new chapter unfold in superhero lore, one thing is clear: The world of super heroes just got a lot more accessible—and maybe just a tad sillier! If you have questions about what this means for you, contact one of our trademark attorneys