So, considering that the word “superhero” didn’t originate with them (dates back to about a century ago) and despite both companies on that word/variants, would I be easily setting up myself for a lawsuit if I put that word in a book title (you make get a pass if it was a book on how-to-draw or about the history of)? It doesn’t help most peoplewill likely associate “super hero” with Marvel or DC.
For clarification, only that word/variants (“super-hero”, “superhero”, “super-heroine”, and “super heroine”) would be on the cover. Two companies having a TM on what is clearly a generic TM should mean they lose the TM, unless it was something like “DC Super Hero Girls”).
Marvel and DC have apparently been jointly claiming trademark (Wikipedia link) on various versions of the term “Super Hero” since the 1960s. While it looks like the issue of whether the term can legally be trademarked has been debated for a very long time, it sounds like the trademarks are, at this point, still in force.
In other words: people with more legal training (and more money for litigation) than the OP have pursued this, for literally decades, and those trademarks are still around.
From a Comic Book Reporter article from a while back:
So it sounds like a novel might be out of the woods. Google Books turns up a lot of books with “superhero” in the title, although the list is heavily biased towards children’s books and nonfiction about superhero comics.
Some day, Kadmos1 is going to write a novel where Tarzan, Sherlock Holmes, and Zorro become superheroes and fight evil robber baron legacy media estates, and it is going to make a million dollars and make fools of all of us.
Since the OP is asking about potential lawsuits, this is better suited to IMHO.
For clarification to the OP since you are relatively new here, we tend to put anything involving legal matters in IMHO since we moderators aren’t lawyers and can’t always determine whether the matter is factual or involves legal opinions. As the IMHO forum name implies, any responses you get there are just the opinions of some folks on the internet, and should not be considered to be the equivalent of professional legal advice. When dealing with legal matters, it is always best to consult a real life legal professional.
Eh. I sketched out a modern-day return of Zorro novel a while back, before I figured out Disney owns pretty much all the rights including those of Johnston McCulley’s ashes, and shelved it.
Since there are many non-DC/Marvel books on Amazon with “superhero” in the title, just as there are many non-Burroughs books on Amazon with “Tarzan” in the title, it should be obvious that trademarks are extremely specific in application. Having a trademark on a word, name, or term doesn’t preclude all use.
This is actually an interesting case. In most situations the word would be treated as a generic and DC/Marvel could lose trademark status.
But there is an explanation here that seems to cover it.
So while you’re free to consider this a moral issue, the facts seems to be that the case in law is a sound one. You yourself say that most people will indeed associate the word with DC or Marvel, which means that the legal theory is appropriate.
Can we at least point out that slapping a [TM] on something is way different than obtaining a (registered) [®]. [TM] is a claim of a registered trademark. [®] is the real deal. Simply claiming a trademark doesn’t mean you own it.