It’s also applied to trademarks that have not been submitted for registration at all.
No offense, but I think that’s doubtful. The word “Nazi” is an historical term, and I don’t see how Lucas et al. could have had any claim to the term at all.
Additionally, an online search at the US Patent and Trademark Office (www.uspto.gov) does not reveal any trademarks issued for that word.
They trademarked it. That doesn’t mean the trademark office accepted it. Basically, that the time they were slapping trademark notices on every damned thing they could find.
That would be wrong. The key issue with regard to trademarks is likelihood of confusion. The trademark owners here have a pretty good argument that the differences between “superhero” and “Super Hero” are not significant enough to stave off confusion.
I have my doubts, however, regarding whether the “Super Hero” trademark registration would stand up to scrutiny. I have a pretty good argument that it’s a generic term.
That doesn’t make any sense to me. “To trademark” something means to register it as a trademark with the appropriate agency (in the United States, it’s the U.S. Patent and Trademark Office). If they have issued the trademark registration, then the presumption is that it is a valid trademark. If the P.T.O. did not issue a registration, then the term has not been trademarked.
You can’t restrict the use of a term for its ordinary meaning. If D&D is using “ent” for its folk meaning, then the Tolkien estate can’t stop them. Furthermore, if Tolkien was using “ent” for its folk meaning, then Tolkien can’t have a trademark on the term.
What evidence does Futurama give you that “Soylent Green” is not a trademarked term? Remember, owners of trademarks do not have the right to control all uses of the term in question. They only have the right to stop infringement, which is a commercial use of the term that tends to mislead consumers regarding the origin of goods and services.
Again, even if Heinlein had tried to register a trademark for the term, he would not have been able to control all uses of the term. First, he would have to demonstrate that he was using “grok” as a source indicator of the provision of goods or services to the public and he would have to show that another user’s use of the term created a likelihood of confusion with regard to the origin of the other user’s competing goods or services.
So he would have had to answer these questions:
- What goods or services was Heinlein providing using the term “grok” as an indicator of source?
- Was the other user of the term “grok” using it as an indicator of the source of directly competing goods or services?
- Is there a likelihood of confusion on the part of consumers?
They claimed to have trademarked it with the intent of submitting it. It appears (or appeared) in their products with a {tm} symbol. They presumably didn’t submit it or it was rejected.
I can assure you that the Indiana Jones Role Playing Game, published by TSR, contained cardboard minatures- one of which was labelled “Nazi[SUP]TM[/SUP]”.
I had assumed that it was TSR that had the balls to try and trademark “Nazi” given their later fights over the term “Drow”; finding out that it was LucasArts is surprising.
But someone added that “TM” on the Nazi minatures.
Okay, lots of stories as to why “Nazi[sup]TM[/sup]” appeared on those miniatures.
From rec.games.frp.dnd FAQ: 3/9 – TSR
C8: Did TSR really try to trademark the word “Nazi”?
A: No, though that is a popular rumor, especially among people who are looking for any excuse to hate TSR. This incident comes out of the Indiana Jones RPG. The statement in question actually says “NAZI™*; ™ & © LFL 1984; *trademarks of Lucasfilm, Ltd. used under authorization.” In other words, TSR has never made any claim to a trademark on the word “Nazi,” but Lucasfilm, Ltd. has made such a claim. However, before anyone decides to start railing on Lucasfilm, realize that the trademark in question is of the word and the associated artwork. That is, there is no claim that the word “Nazi” by itself is a trademark, but there is apparently a trademark on the word when accompanied by the specific artwork that was seen with it in that module.
But from The Wikipedia entry on TSR:
In a humorous related note, the company was often accused on the Internet of having tried to trademark the term “NAZI”. This was based on a typo in a supplement for the Indiana Jones RPG where some figures were marked with “NAZI™”. Presumably, this is due to the abundance of trademarked names of Lucasfilm characters used on the same sheet and was obviously an error. Later references to the typo would forget its origin and slowly morph into stories of TSR’s trying to register such a trademark.
But what if I wasn’t using the word in reference to comics as it states in the cite?
If I said, “The fireman’s abilities made him a superhero in the eyes of the townspeople”. Would that be a violation?
Trademark law is not intended (and does not have the power) to prevent people from using words in ordinary speech or writing, but only from using them for commercial purposes to identify products or services.
If this isn’t in a commercial context, I don’t see how it could be a violation.
What if it were a commercial context, but not comic books?
That doesn’t make sense Droid predates starwars and is a derivitive of the much older term Android.
How is this possible? Droid is just a shortening of android. Using that logic, I could write a story where a character calls a thermometer a “mometer” because that’s just the way he speaks, and I can register that as a trademark?
The legal system is fucked up.
Then why not go through the dictionary; ponder on every freakin’ word to see if you can come up with a “clever” short form, trademark it, and sit back and count your wealth when some other poor slob has the same idea, but you beat 'em to it?? :rolleyes:
There oughtta be a law.
No, it wouldn’t be infringing, and neither would it be if you used the spelling just as trademarked –
“The fireman’s abilities made him a superhero …”
“The fireman’s abilities made him a Super Hero …”
Neither usage infringes on D.C. and Marvel’s trademark. The change in spacing and capitalisation doesn’t make a difference.
Okay, let’s review.
In order for your usage to infringe on a registered trademark, –
- It must be used in commerce as an indicator of the origin of goods or services
- The goods or services must be in the same market as the purpose for which the trademark was registered (generally, there’s a list)
- It must cause confusion on the part of the consumer regarding the origin of goods or services
I have my doubts about whether D.C. and Marvel’s supposed “Super Hero” trademark would stand up to scrutiny. (Questions: Is it being used as an indicator of the origin of goods or services? Is it a generic term for what D.C. and Marvel are using it for?)
More specifically, there must be reasonable potential for it cause confusion. That is, the plaintiff does not have to demonstrate that confusion has already occurred in order to demonstrate trademark infringement.
Based on a complete misunderstanding of how it works.
I’ll see your :rolleyes: and I’ll double it: :rolleyes: :rolleyes:
Because you can’t. In order to trademark a term you have to demonstrate that (1) You’re using it as an indicator of the origin of goods or services, and (2) You’re not using it for its ordinary meaning. (Actually you have to demonstrate more than that, but that’ll do for now.)
Now, you can make up words and trademark them, so long as you can show that you’re using it as an indicator of the origin of goods and services.
If, prior to Star Wars, “droid” was not a common abbreviation for “android,” then it can be trademark, under certain conditions.
But it does not mean that every time you use the word you have to pay a fee to Lucasfilm. All they can do is stop you for using it as a source indicator for a competing product. If you’re not doing that, you can say or write “droid” all you want.
There is no way to make money off of a trademark unless you’re using it in commerce, that is, you are selling something using the mark as a brand name. You can’t just trademark something and wait for money to roll in.
There is. It’s called the Trademark Act.
An additional point is that one must vigorously defend usage of the trademark in order to retain the trademark. You may indeed try to trademark every word in the dictionary, but then you must be prepared to prosecute any and all percieved violations of all your trademarks. You can’t just sit back and let the money roll in
[And now I see that acsenray has said it better than I.]
“Infringing” is only part of the concern in using a trademark generically. If you write “I made a xerox of the document.” in a newspaper article, you will get a nasty letter from Xerox’s attorneys telling you to not do that. If you persist, they will file an injunction or worse.
Companies are very worried about their trademarks becoming generic (a la aspirin and cellophane). Coke, Xerox, Kleenex and Formica are terms that are frequently used generically and whose lawyers can get nasty about.
In the computer field, “Unix” was notoriously protected by AT&T. They made a lot of people unhappy. (Now, one of the claimaints for ownership of “Unix” is making a lot of people unhappy, but for different reasons.)
Can you really “fight” a winning battle against Marvel/DC lawyers if you use the word “superheroes” in an article on your website?
And “Microsoft” is just an abbreviation of the word “microcomputer” and an abbreviation of the word “software.” But put them together and use it as a brand name for computer software, and you have an enforceable trademark.
“International Business Machines” is just three commonly understood English words. But put them together and use it as a brand name for computer hardware and services and you have an enforceable trademark.