Up, Up, and Oy Vey: How Jewish History, Culture, and Values Shaped The Comic Book Superhero
The Myth of the American Superhero
Superheroes and Gods: A Comparative Study from Babylonia to Batman
Hercules: The First Superhero
How To Be Your Dog’s Superhero: Transform Your Dastardly Dog Using the Power of Play
And on the fiction side:
Caped: The Omega Superhero Book One
The Superhero’s Test (The Superhero’s Son)
The Second Super (The First Superhero, Book One)
The Undead Pool: A Superhero Origin Story
Sentry Squad (A Superhero Thriller Novel)
And since none of those involve either DC or Marvel characters, it looks like you’re allowed to create your own superhero and even claim it right in the title.
Yes and no. U.S. law does not require the registration of a trademark, but doing so gets you extras like the ability to use federal courts. “You can establish ‘common law’ rights in a mark based solely on use of the mark in commerce, without a registration,” says the USPTO.
It’s similar to the difference between copyright and a registered copyright. Having the registration gets you extras, but that doesn’t mean that a non-registered copyright is meaningless.
I dunno… there’s a lot more to trademark than just association. I think the argument that the term has become genericized might carry the day if it were to ever go to a court case. I mean, if someone asks me if I watched the basketball game yesterday, I’m 99% likely to think they either mean an NBA or college basketball game, but it doesn’t mean the NBA and NCAA own a joint trademark on “basketball.” You can also use the term “superhero” as a genre now… if you ask people what they think of when you say “science fiction” I bet the majority would either say “Star Wars” or “Star Trek”, but again, that doesn’t mean Disney and CBS own a joint trademark for “science fiction.”
From what I’ve read, this was the first case to make it into court. Previous trademark applications were either dropped or settled. You are entitled to assume that they pulled out because they knew they would lose, but that’s an assumption. Even if you assume that truth, it may have been a bad case for them. Graham Jules was writing a self-help manual called From Business Hero to Superhero. That usage is so far off from a comic book superhero that they might just have wanted to ensure that a court loss couldn’t be used against them in future, more appropriate cases.
I wouldn’t be upset if DC/Marvel lost their trademark. I could argue the merits either way. And to be honest I don’t think that they would be badly hurt if they did lose it. But I never bet on the way any IP case goes in court.
Our local pool has a Red Cross poster up (part of a series) with a kid wearing a towel for a cape around his neck* and a slogan like “Even superheroes need to know how to swim.”
Maybe Marvel and DC can sue the Red Cross? That’d be fun for all involved.
Yeah, it’s generic in practice. The issue is getting it declared generic officially.
Why a whole series of safety posters shows kids doing something dangerous is beyond me.
Image Comics, Valiant Comics, Charlton Comics, Tower Comics and many others happily printed superhero comics for decades. Not to mention Terrytoons, etc.
also Abar, the First Black Superman, Hero at Large, Condorman…
And for the millionth time, anybody can do a superhero comic or movie or novel or any other media. You just can’t advertise it or title it as a “superhero.” The trademark is on the word used commercially, not the concept.
Another thing to realize is whether you are technically right, and how you would do in a trademark dispute with Marvel/DC are very different answers.
Imagine you do use “superhero”, and then think about how you would handle a demand letter from the legal representative of one of those companies. Would you immediately fold and change the title? How much would it cost you to change the cover art? Would you try to fight it? How deep are your pockets?
It’s all well and good to understand the subtleties of trademark law, or to make a moral argument that you ought to be in the right, but is that the hill you want to die on?
As Exapno pointed out, you misunderstand the significance of a trademark registration. An unregistered trademark is just as much a “real deal” as a registered trademark.
I just wanted to add that I’m looking at a hardback of Mandrake The Magician reprints from the 1930s – just published this past year – and the back cover trumpets, in great big letters, that the caped do-gooder who uses his powers to foil crooks and save lives is “THE COMIC WORLD’S FIRST CRIME-FIGHTING SUPER-HERO!”