Marvel, DC Lose ‘Superhero’ Trademarks After Failing To Respond To Cancellation Petition
We have a hero in our midst, one that is responsible for freeing up the term “superhero” from its previous trademark imprisonment. If you don’t recall, Scott Richold is a British comic artist who produces the Superbabies line of comic books. Richold applied for a trademark for his comic only to find it opposed by both DC and Marvel. The two companies jointly held 4 trademarks to the term “superhero” and variations of that term. And if that strikes you as plainly absurd, given that the “superhero” is the name of an entire genre of fiction across many mediums, you’re certainly not alone.
As a result, Richold petitioned the USPTO to cancel those four trademarks, arguing that the terms have become generic. As detailed in a follow up post, I figured there were several ways that DC and Marvel might respond to the petition. They could have fought it, deploying a hefty legal war chest to try to simply bully Richold out of his attempt. Or they could have amicably released their marks, generating some amount of goodwill within the public. But I didn’t expect the companies to simply fail to respond to the petition entirely, which is exactly what happened.
As a result of the failure to respond, Richold moved for a default judgement, which would free the “superhero” term from trademark status and move it into the public domain. And, admittedly, to my surprise, the TTAB granted the default judgment.
A U.S. Trademark Office tribunal has canceled a set of “Super Hero” trademarks jointly owned by comic giants Marvel and DC at the request of a London-based comic book artist, according to a Thursday order.
The USPTO’s Trademark Trial and Appeal Board ruled for S.J. Richold’s Superbabies Ltd after Disney’s Marvel and Warner Bros’ DC did not file an answer to Superbabies’ request to invalidate the marks.
Interestingly, and somewhat frustratingly, the DC and Marvel sides of this equation aren’t responding to requests for comment. As a result, whether this failure to respond was part of a cost-saving plan in which the companies wouldn’t rack up legal fees for responses to what it knew would be a losing battle is unknown. Several commenters in previous posts suggested that might be what went on here, but we just don’t know. I would be surprised if that was indeed the case, but since most everything about this whole thing has surprised me so far, I suppose it’s possible.
But whatever the reason for the inaction on the part of DC and Marvel, the end result is that the term “superhero” and its variations are free once more for use across the different entertainment mediums.
Superbabies attorney Adam Adler of Reichman Jorgensen Lehman & Feldberg said in a statement that the ruling was “not just a win for our client but a victory for creativity and innovation.”
“By establishing SUPER HEROES’ place in the public domain, we safeguard it as a symbol of heroism available to all storytellers,” Adler said.
As it probably always should have been. Not all heroes wear capes, as the saying goes, so today we salute Scott Richold.