Peter G (sinetimore) wrote,
Peter G

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Uh, Can I Uncast The Fireball? I Think It Made Him Mad

Okay, Rule #1 for litigation is not sue anyone with far more money than you have.  For example, SCO made this mistake when it sued IBM and Novell.  This is also why, when you start working on screenwriting, the first piece of advice you are given is, "Do not screw with the Mouse."  Disney is notorious for destroying the livelihoods of people who sue them, even if they have standing.

Everyone knows the legal system is a very imperfect mechanism.  You can file a lawsuit against anyone for anything.  Proving it in court is another matter.  Because most lawyers will advise you to settle (a good lawyer keeps you OUT of court), the legal system can be used to bully smaller people.

Nowhere is this more obvious than with the word, "superhero", or "super hero".  In the 1950's, Marvel and DC got into a pissing match over who owned the word "superhero".  They had already gone the rounds over Captain Marvel -- because of trademark, DC has to call its comic with the Big Red Cheese Shazam while Marvel can have a Captain Marvel who isn't the Big Red Cheese.  Eventually, they reached a truce.  They are co-owners of the trademark for "superhero".

Now, what you can and can't get away with as far as the word "superhero" goes is rather nebulous.  Supposedly, you can have your characters in your comic describe each other as superheroes, and you're fine.  But if you advertise your book as a "superhero" book, Marvel and DC will sue.  This is why Malibu's Ultraverse had Ultras, the Promethean Universe (that apparently no one but me bought) had Prometheans, The Incredibles had the characters referred to as "supers", and the ever popular term "capes".  In Quantum Redshift, Rose and Bridgett continually describe things as "comic book hero" instead of "superhero" just because I didn't want a C&D sent to me.

The general consensus among legal types is that Marvel and DC's claim is pretty weak.  The whole point of a trademark is to keep the market from being diluted.  Well, Marvel and DC have been diluting each other, and the word is used so frequently, it could be general use (you can't trademark the word "light bulb" because it is in common use.  This is why so many drugs have brand names that are made up or intentionally misspelled).  But that doesn't stop Marvel and DC from doing stuff.  For example, there was a great comic book series called Super Hero Happy Hour.  They got C&D'ed, and the subsequent books and collections were just Hero Happy Hour.  This also means it's inconsistently applied.  But by only going after select targets, Marvel and DC have made a boogeyman.  Remember, settlements are not allowed for legal precedents.

Sunne Law PC of Georgia has been looking to drum up some business.  No, legally.  They started an ad campaign.  Here's a sample:

Now, this wasn't a problem.  The problem came in the ad directly above this paragraph.  Sunne Law PC decided to trademark "superhero lawyers".  That was what alerted Marvel and DC and made them sic their lawyers on them.

I want to repeat this...Marvel and DC are suing a team of lawyers.

The complaint mentions also how the characters in the ads above look like Superman and Supergirl, and that the dog violates DC's trademark on Krypto The Superdog.

Sunne Law's response?  They not only point out that the dog is not the same breed as Krypto, but show how the drawing was made from an original picture of the lawyer's dog.  You know, a living thing that can't be trademarked.

The rest?  I'll let them say it.  It's a hoot:

Notably, all of Opposers’ marks relate to goods which depict fictional characters who use their fictional superhuman abilities to thwart fictional criminal activities; and, notably, they do so without regard for the Constitutional rights of any of the alleged “criminals” who they “bring to justice” without so much as a miniscule consideration of their presumption of innocence, as such is the way of comic book fiction.

As clearly admitted by Opposers (See, ¶ 4 of the Notice of Opposition), Opposers are engaged in the publishing business, and their various marks relate to goods associated therewith, along with the fictional characters depicted in their publications. Applicant, on the other hand, provides real “legal services” to real clients. Accordingly, any claim that Applicant’s use of its word mark “Superhero Lawyers” for “legal services” could conceivably be likely to confuse is incomprehensible. Clearly, no one seeking legal advice would go to Opposers, just as no one seeking a comic book, a toy figure, a t-shirt, or a masquerade costume would go to Applicant, as Applicant provides real legal services to real clients. Unlike Opposers, Applicant acts solely through duly licensed attorneys-at-law.

It is factually and legally absurd for anyone to argue, much less conclude, that there is a scintilla of likelihood that any real person seeking real legal advice or representation would confuse Opposers’ goods depicting fictional characters with Applicant’s actual services. It is also factually and legally absurd for anyone to argue, much less conclude, that there is a scintilla of likelihood that anyone seeking a comic book, t-shirt, toy figure, or masquerade costume would show up at Applicant’s law office for any of those goods.

Opposers’ registrations are all for marks relating to goods, whereas Applicant’s “Superhero Lawyers” mark (“Mark”) is used solely for services rendered by Applicant through duly licensed attorneys. In fact, even if Opposers wanted to expand the use of their marks to areas relating to services, they could not do so with respect to “legal services”, as legal services require licenses based upon education, training, and bar admissions, none of which are possessed by any of Opposers’ fictional characters

Oh, man.  You can almost feel the snark dripping off the words.

Marvel and DC should have been content with their little shakedown, but have just brought this out.  If it goes to trial, it could establish a precedent showing what a bunch of bullshit their "trademark" on "superhero" is.  Let's hope Marvel and DC don't know enough to quit.
Tags: art, comic books, comics, did not do the research, don't try this at home, haven't we suffered enough, history, important life lessons, infernal gall, lord hear our prayer, quantum redshift, stupidity, this ought to be interesting
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