Common Word Trademarks: Superhero

The idea of a superhero is longstanding in books, paintings, movies and, of course, comic books. When you think of a superhero, you might think of Captain Marvel, or you might think about someone who is unusually brave. If you’re going to write about a superhero, however, you will have to be sure you don’t violate any trademark rights. The term “superhero” is owned in a joint registration by DC Comics and Marvel Comics.

Child striking a superhero pose

Unusual Agreement

The superhero trademark resulted from an unusual agreement the two competitors made early in their histories.

DC Comics and Marvel rule the superhero comic book universe. DC publishes the adventures of Superman, Wonder Woman, the Green Lantern and Batman, while Marvel’s famous characters include Iron Man, Spiderman, the Hulk and Captain Marvel. Their characters have appeared in countless movies, TV shows, amusement parks and comic book conventions.

Protection Against Outside Publishers

As the popularity of their superhero characters soared, both publishers realized they might be competing with each for the coveted term of “superhero.” In 1979, they registered the trademark together in a joint ownership agreement.

This might seem like an odd move, but it made sense legally. Both companies realized how valuable the term “superhero” was. They also knew they would have to protect its use from other comic book publishers. If they fought each other for ownership, they might both lose out. Rather than spend decades in litigation that could hurt them both, they banded together to protect their term from other comic book companies.

Restricted Uses

Their trademark applies to all uses of the term “superhero” in books, comic books, magazines and other publications. The restrictions extend to movies, TV shows and video games. They even include costumes, stand-up figures, playing cards, t-shirts, shoes and school supplies.

What happens if a character crosses from one comic book universe to another? In that situation, the comic book may use the character’s name in the story, but it can’t use the name to advertise the comic book or as the comic book’s name. For instance, if Batman appears in a Marvel publication, Marvel can use the name Batman inside the comic, but it can’t use Batman in the title or advertise that Batman is in it. That’s because DC Comics owns the exclusive right to use the name Batman.

If an outside publisher wants to use the character names, they can do so according to the same rules. There is one big difference, however. That outside publisher can’t use the name “superheroes” in the title of its comic book.

Secondary Superheroes

If that’s confusing, it’s because it’s hard to wrap our minds around the idea that someone could trademark an ordinary word. We may think the word “superhero” represents a universal idea, but DC Comics and Marvel used the legal test of “secondary meaning” to get their trademark.

Secondary meaning refers to the idea that people associate a particular product with a specific name. For example, most of us think of a DC or Marvel character when we hear the word “superhero.” DC Comics and Marvel used that familiarity to get their registration.

Litigation Efforts

Since many people want to use the term “superhero,” the two companies have fought aggressively to preserve their rights.

In 2005, DC Comics and Marvel opposed the use of “Superhero Specials,” a marketing campaign by an Australian supermarket chain. The chain withdrew its application for a trademark.

In 2006, they opposed the registration of Superhero Beer and Superhero Cola by the Lucky Drink Company, and that company also withdrew its application.

Longer Battles

The applicants in those cases folded quickly, but others fought for years.

In 2010, comic book author Ray Felix self-published a comic book titled, A World Without Superheroes. When he attempted to register the title, he met opposition from DC Comics and Marvel. The publishers applied for a default judgment to the U.S. Patent and Trade Office (USPTO).

In his response, Felix wrote that the publishers “have created a monopoly in the comics industry on a word that can be found in almost any English dictionary. It’s not legal, but the government was sleeping at the wheel and has allowed them to jointly own this registered mark.” He protested their ability to sue someone “for using a generic term which is found in the dictionary and is synonymous with youth pop culture since the 1930s.”

Felix fought hard, but the patent office sided with the trademark holders. In 2014, he withdrew his application.

Read more on trademarks on common words or phrases.

Buck the Superhero

In 2011, DC Comics and Marvel lost a trademark dispute with a loan company in New Zealand. The company, named Superloans, used an advertising mascot named Buck who dressed like a superhero and even had a flying cape. DC and Marvel opposed the trademark registration. They lost the case, however, because a ruling panel concluded that, “It is not established that the opposed mark is the product of copying any particular superhero character.”

Super Zero

In 2016, they issued a cease-and-desist letter to a British writer named Graham Jules. Jules had written a book titled, From Business Zero to Superhero. The book was a guide for start-up small businesses and had nothing to do with caped crusaders or any type of comic book character.

Jules represented himself before the U.K. Trademark Registry, which is the British equivalent of the USPTO. He argued that the word “superhero” is a common generic term. He even used Marvel’s past experiences to support his case, pointing out that Marvel was unable to get a trademark for the word “zombies” because zombies are a popular fictional archetype.

The hearings dragged back and forth for more than two years. At one point, DC and Marvel offered to pay Jules to change his title, but he refused. The two publishers finally dropped the claim in 2016, and Jules was able to trademark the title.

Secured Superheroes

DC Comics and Marvel have secured their trademarks to a term that’s fundamental to both their businesses. Since getting their trademark in 1979, they have defended it aggressively. You might say they have fought like one of their own superheroes to protect their IP.

Further Reading

If you’re interested in trademarking items like a superhero name, you may also want to read these articles.

Xavier Morales, Esq.

About the Author:

Xavier Morales, Esq.

Mr. Morales founded this trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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