Trademark on the word "Superhero"

[Desilva]

This seemed as good a place as any to ask this question and I was already registered for this forum, so here I go.

I've written the first of a series of superhero stories and in doing so I did some research about the word, recalling that I heard from somewhere that Marvel and DC owned the term. I use the word superhero quite a bit within the story and had planned to continue using it throughout the series, so this issue seemed relevant.

I learned that what they own is the trademark on the word. Not quite understanding how that applied to the allowable usage of the word, I dug deeper.

What it seems like is that the word can't be used as part of the title or any marketing, but can be used within a work freely. That encourages me, because I don't even have a title yet.

So, am I right, or am I going to have to start expending creative energy coming up with alternatives?

[Jimorian]

IANAL (I Am Not A Lawyer), but I think your understanding is pretty much on the mark assuming it is actually trademarked. As a cultural reference whether in fiction or non-fiction, using superhero is fine (and in fiction, using proper Super Hero(r) Brand Comicbook type terminology is not required).

<google-fu> Ahh, plus it looks like they only own the trademark on the 2-word version. So superhero should be fine.

As you say, it's marketing something as a "Super Hero Novel" or comic book, or action figure that's mainly covered.

[Swordguy]

You can't trademark a term in common usage or basic concept. If a term is in common usage, it becomes impossible to enforce the trademark (see also: every movie review of The Dark Knight that used the term Super Hero. There were loads...), which makes the trademark void. However, people do it anyways (it's prety much a rubber stamp process) and wait for somebody to have the guts/money to sue them over it, which, aside from a court order (say, if you tried to trademark the term "president", you'd have a court oder overturning it very quickly), is the only way to overturn a trademark once it's established.

For example, the guy who owns the Ohio Renaissance Festival TM'd the terms "Renaissance Festival" and "Ren Faire" and "Medieval Festival" and "Medieval Faire". It was initially approved, until the Great Lakes Medieval Faire (O-Ren's direct competitor) sued them and had it thrown out because the term "Medieval Faire" is in relatively common usage across the country (there's like 35 of them). Until they did that, though, several smaller Medieval Faires in Ohio had to shut down. It cost me a job at one of them, so you'd better believe I've kept up on this crap.

The trademark serves as a deterrent - you can often get them overturned, unless the trademarking company literally invented the concept. However, it requires a court battle, so most ordinary folks will just chalk it up as a loss and move on.

[Jimorian]

You can't trademark a term in common usage or basic concept. If a term is in common usage, it becomes impossible to enforce the trademark (see also: every movie review of The Dark Knight that used the term Super Hero.

Except that usage in a review or other article is NEVER in question. I could use the term McDonald's Chicken McNuggets(r) a zillion time in an article, get paid for it very handsomely, and McDonalds Inc. couldn't say squat to me or the publisher, and wouldn't be owed a dime. (They will send a lawyergram if I don't capitalize the term or otherwise make a mistake in the proper usage, but that's not so much a threat as simply defending the trademark, which is required to keep it.) I could also use trademark terms freely in fiction, and even misuse the way it's supposed to be said if that's consistent with how the characters may talk (how many TV shows and movies call a Harley Davidson Motorcycle a "Harley"?).

Defamation of a trademark is an entirely different matter -- imply in a story that Disney feeds its park mascots with deep-fried Guatemalan children and you might have a problem. "Evil" Corporations in novels and movies are usually very fake, while good or neutral representations of a company will often use real names for versimilitude.


There were loads...), which makes the trademark void. However, people do it anyways (it's prety much a rubber stamp process) and wait for somebody to have the guts/money to sue them over it, which, aside from a court order (say, if you tried to trademark the term "president", you'd have a court oder overturning it very quickly), is the only way to overturn a trademark once it's established.

No disagreement here.


For example, the guy who owns the Ohio Renaissance Festival TM'd the terms "Renaissance Festival" and "Ren Faire" and "Medieval Festival" and "Medieval Faire". It was initially approved, until the Great Lakes Medieval Faire (O-Ren's direct competitor) sued them and had it thrown out because the term "Medieval Faire" is in relatively common usage across the country (there's like 35 of them). Until they did that, though, several smaller Medieval Faires in Ohio had to shut down. It cost me a job at one of them, so you'd better believe I've kept up on this crap.

That sucks, and is as you say, a very improper way to try to capitalize on something that has previously been around. One interesting article came out how Canada has granted the IOC trademark status to a line in their national anthem (both the English and French version), and well as the year 2010. Member countries of the IOC already have to grant "Olympic(s)" and "Olympic Games" as trademarks, which causes problems with companies that have had the name WAY prior to the granting of the games.


The trademark serves as a deterrent - you can often get them overturned, unless the trademarking company literally invented the concept. However, it requires a court battle, so most ordinary folks will just chalk it up as a loss and move on.

I think that's how the late granting of Super Hero came about. It is possible to own a "common law" trademark simply by inventing/using a term even though you don't register it. That's what the <tm> version means in fact, that it's an unregistered trademark. I bet when one tried to officially register it in 1981, it caused a very interesting legal battle at the time if the result is that both companies now own it. What a third party could argue in this case is that there were a LOT of years where neither company defended the trademark, unregistered or registered, and that's what causes a term to fall into the public domain.

But again, this will have nothing to do with using the term Super Hero/Superhero/Super-Hero in an article or fiction, but has a LOT to do with how it is marketed. And again, it's the very specific 2-separate-word variant that they own, not superhero or super-hero.

[Desilva]

Thanks for the replies. This is very encouraging.

[truemane]

Favourite story along these lines:

The university I attended had a football team call the X-Men. This name stems from the usuall abbreviation of St. Francis Xavier University (STFX).

Marvel comics tried to sue the university for copywrite infringement. The university, however, was able to prove that the football team (and the name) had been around for several decades prior to the first issue of Marvel's X-Men.

That makes me laugh. Stupid Marvel. Way to do your homework.

[Supagoof]

Supahero would be a fine alternative as well. :smallwink: :smallamused:

[bluewind95]

That Disney movie... The Incredibles... Wasn't it basically a superhero movie? If superheros are really trademarked, then you might want to look at how Disney went over that obstacle ans use a similar method.

[Destro_Yersul]

That Disney movie... The Incredibles... Wasn't it basically a superhero movie? If superheros are really trademarked, then you might want to look at how Disney went over that obstacle ans use a similar method.

I think they referred to them as either 'supers' or 'heros', not both at the same time. Also, in the commentary, someone mentions that they had a horrible time trying to come up with superhero names that hadn't been taken.

[averagejoe]

Supahero would be a fine alternative as well. :smallwink: :smallamused:

Not just fine, but awesome. :smallamused:

I have to go write a Supahero story now...

[turkishproverb]

It's trademarked, but your stilll probably ok using it in any context, they tend to only sue when they want to look good about crushing something they think could be seen as "dangerous" (superhero happy hour)

Besides that, it is a trademark, so if you don't use it in the advertising dress you should be ok regardless.