By: Henry Carrington
Marvel and DC Comics, two titans of the industry united for a common goal: to protect their trademarks on the terms “Super Hero” and “Super Heroes.” For years the two competitors have teamed up to prevent artists and authors from using the terms in their own stories. This was until Superbabies Ltd. put a stop to their plan on September 06, 2024.
In 1967, a Halloween costume manufacturer known as Ben Cooper Inc. successfully registered a trademark for the term “Super Hero” for use with a series of costumes the company produced that featured both Marvel and DC characters. Following this, in 1972, Mego Corporation attempted to register a trademark for “World’s Greatest Super Heroes” to use with a line of action figures they were producing; however, Ben Cooper Inc. opposed the registration by Mego. As a result of the opposition, Mego jointly assigned its interest in their trademark to Marvel and DC, leading to Ben Cooper Inc. withdrawing their opposition and assigning the interest in their “Super Hero” mark to the two companies as well.
After obtaining the trademark for “Super Hero”, Marvel and DC continued to register three additional related trademarks including one for “Super Heroes” to use in a plethora of commercial applications including publications. With these registrations in hand, Marvel and DC have opposed several publications by smaller authors and comic artists for including the term “Super Hero” in the title of their work. Most recently, Marvel and DC delivered a cease-and-desist letter to S.J. Richold’s London-based company, Superbabies Limited, after Richold attempted to trademark “Superbabies” for use in the title of his comic book series.
Richold hired Adam Adler, an intellectual property attorney, to file a petition of cancellation with the United States Patent and Trademark Office (“USPTO”) on May 14, 2024. Adler’s petition claimed that both the “Super Hero” and “Super Heroes” marks have become generic and that the terms refer to a genre rather than a specific brand or character. In his complaint, Adler provided several examples highlighting the use of “Super Heroes” as a general term, including its use in marketing materials for comics not affiliated with Marvel or DC such as Invincible, as well as its use in several of Netflix’s genre categories. Adler proceeded to claim that Marvel and DC’s own use of the term “Super Hero” demonstrates that the mark is generic by showing how Marvel and DC have both previously used the term as a general descriptor rather than a brand identifier.
Once the complaint was filed, the USPTO issued Marvel and DC a July 24, 2024, deadline to challenge Adler’s claims; however, the two companies never challenged the complaint. Marvel and DC’s failure to respond led to the USPTO’s Trademark Trial and Appeal board granting a motion for default judgement which Adler previously filed. This resulted in the cancellation of Marvel and DC’s trademarks for the terms “Super Hero” and “Super Heroes” allowing for the general public to freely incorporate the terms into their works.
With the cancellation of Marvel and DC’s trademarks, authors, artists, and many others can freely use the term “Super Hero” without fear of being sued by the two of the largest players in the industry. Marvel and DC probably believed that even if they challenged Adler’s complaint, they would not be able to win the impending legal battle. The two companies have previously attempted to sue authors for including the registered terms in their titles. However, the results of these lawsuits are a mixed bag. In most cases, an author who receives a cease and desist by either Marvel or DC is afraid of taking on large companies with extensive resources and will usually forfeit their usage of the terms. However, in rare cases where the author does decide to pursue litigation, Marvel and DC dropped their opposition at the very last moment and allowed the author’s use of the terms.
This is likely due to what Adler alleged in his complaint, the terms have become generic, and Marvel and DC’s use of the terms reflect that. The companies use of “Super Hero” did not identify a specific character or idea. Instead, it served as a descriptor for a general archetype of character. In today’s world, consumers do not affiliate “Super Hero” with any one character or brand; most people either have a favorite character within the genre or at the very least, understand the general themes and qualities of a super hero.
Now that the term “Super Heroes” is no longer a registered trademark, authors and artists can create the stories they want without the fear of impending litigation. Marvel and DC used their registrations as a scare tactic to ensure that smaller creators did not challenge their market reach, almost acting like villains in their own right. This case demonstrates that even titans like Superman can be taken down by small heroes like Superbabies.
Student Bio: Henry Carrington is a second-year law student at Suffolk University Law School. He is a staff member for the Journal of High Technology Law. Henry received a Bachelor of Science degree in Accounting and Management with a minor in Business Law from West Chester University in 2022.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
