For 57 years, Marvel Comics and DC Comics enjoyed the exclusive use of the word “Superhero” as a joint trademark. But that enjoyment quickly came to a halt on September 26th, 2024, when the United States Patent and Trademark Office’s (“USPTO”) tribunal panel removed the word “Superhero” as a registered trademark.

First, let’s start with, what is a trademark? A trademark is a symbol, word, or words legally registered or established by use of a particular company and identifies the goods or services. A trademark is issued by the United States Patent and Trademark Office (“USPTO”), and it provides legal protection for your brand to prevent fraud or counterfeiting.

Briefly taking a glimpse into the past, the two comic giants have dominated the comic industry since 1954, publishing a majority of American comic, particularly those about superheroes. As time went on, they would attempt to purchase smaller publishers that would take a shot at writing superhero comics. In 1966, the two publishers jointly applied to register the trademark “super hero” for masquerade costumes. The application was subsequently granted in 1967, after which they also filed applications for “Super Heroes” to be used for toys, publications, ice cream, clothing, and television programs.

Despite Marvel Comics and DC Comics trademark being removed on a technicality for failing to make a timely response to the challenge, it likely still would have been removed due to its genericness. Even with just a quick search on the USPTO.gov website, it becomes clear that many individuals have found a creative way around the restrictions based off the trademark by adding dashes or slightly changing the words. Marvel Comics and DC Comics having a joint trademark on the word was particularly strange in the first place, because “Superhero” appears to refer to an entire genre and not to a singular source as is required by the USPTO. With that power over the seemingly generic phrase, the two comic giants were able to establish monopolies over the market – leaving smaller publishers unable to enter the superhero creative landscape. In the past, the mark has been challenged countless times, but the companies were adamant and relentless in their efforts to maintain ownership over the mark. The current oversight by Marvel Comics and DC Comics for failure to respond has now opened the door for new voices to make their mark in the super hero realm. However, keep in mind that despite the cancellation of the “Super Hero” trademark, DC Comics and Marvel Comics still hold the trademark for “Super Heroes” and “Super-Villain”.

So, for all you aspiring comic book artists and storytellers, what does this mean for you? Well, this means that you can now share your superhero story that you’ve always wanted to write, without fear of a lawsuit – just be careful about using the term “super-villain”.

 

For help with your small business’s intellectual property needs, contact the SBEC at businessclinic@elon.edu.

 

 

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