A United States Trademark Office tribunal recently canceled Marvel and DC’s trademarks of “Super Hero” and “Super Heroes”. Superbabies Ltd. petitioned for this cancellation and Marvel and DC did not file an answer to the petition nor to the motion for default judgment for Superbabies. In turn, the tribunal granted default judgment which is allowed by the Trademark Rules of the US. Superbabies’ petition first argues that “Super Hero” is a generic term and this is how consumers understand it as well and as such, it cannot be registered as a trademark. When you think of superheroes do you think exclusively of Marvel/DC? Superbabies further argues that competitors cannot jointly own a trademark, stating this sharing is contrary to the purpose of trademarks which is to associate a mark with a single source of goods or services. Do you think competitors should be allow to jointly own a trademark at the expense of all other related business?
Sources:
Copyright & Social Media
Communications Law
Hi Mckenna,
Thank you for bringing this interesting issue to our class’ attention.
I definitely think that “Super Hero” is a generic term. I posit that capitalizing the first letters of the term and splitting it into two words does not make it original, or trademark-worthy.
The Merriam Webster Dictionary defines the term “superhero” as: “a fictional hero having extraordinary or superhuman powers; also: an exceptionally skillful or successful person.” Consequently, as it can be argued that many fictional characters across all media platforms can be described as “extraordinary,” or as having “superhuman powers,” it should not be possible for individual companies to trademark such a universally utilized and common adjective. Further, as any person who is “exceptionally skillful or successful” can arguably de described as a superhero, hence, to allow the trademark would be patently absurd, potentially leading to a snowball effect where basic words in the English language become unavailable to the average person due to the abuse of legal protections by affluent corporations or individuals.
Regarding the question of whether competitors should be allow to jointly own a trademark at the expense of all other related business, I have not yet crystallized an opinion. However, I could see issues coming up should this be permitted. Such as, for example, if large conglomerates come together to create legally-sanctioned monopolies.
Cheers