CUP O JAVA STUDIO COMIX A WORLD WITHOUT SUPERHEROES
DC Comics and Marvel Characters, Inc.
JONATHAN D REICHMAN
KENYON AND KENYON LLP
NEW YORK, NY 10004
Dear Honorable Judge I am presenting evidence to this case which should move you to dismiss this case based on the cases presented. The cases in which I am presenting is a body of evidence which demonstrates not only that the word “Super Hero” is a generic term which should not be trademark in of itself, but tht this Plaintiff, DC and Marvel Comics, have a history of pillaging artistic rights like in the Case of Simon and Schuster, and properties from other competitive companies in cases where DC effectively litigated Fawcett Publications’ title “Captain Marve”l out of existence by filing a complaint in 1941.12 While most of the subsequent litigation concerned copyright issues, DC also sued for unfair competition.1 (as noted on page 732 of attached document).
The Plaintiff also is known for harassing smaller competitive companies within the the same industry, and has a reputation for registering properties like Dell Comics began its own Super Heroes line of comics. The Mighty Comics Group, an imprint of Archie Comics, produced a special issue entitled Super-Heroes vs. Super-Villains that included updates of several golden age Super Heroes who subsequently formed a team, The Mighty Crusaders. (page 734). and Ben Cooper, Inc. that first sought to register SUPER HEROES as a trademark. By the mid-1960s, Cooper had a portfolio of licensed properties that included both Marvel and DC Super Hero characters.36 Seeking a name for its line of costumes that included characters from both publishers, Cooper quietly paid $35 in April 1966 to apply for the registration of SUPER-HEROES as a trademark for use on masquerade costumes. (736).
In addition to Mego Corporation who sought to follow in Ideal’s footsteps by producing individual action figures. In November 1972, Mego filed to register WORLD’S GREATEST SUPER HEROES (WGSH) as a trademark for toy figures. Mego filed its answer to the WGSH opposition in May 1974, but it soon tired of the proceedings, and in December 1975 it assigned its interest to DC and Marvel jointly. DC and Marvel had previously realized that trademark protection both for individual character names and likenesses and for the category name “Super Heroes” was essential to developing merchandising revenue, although there were gaps in their trademark portfolios.4 (page 738).
The Plantiff's DC and Marvel then remained competitors, and each filed for separate Super Hero–related trademarks; in some cases they appeared to test each other before finally arriving at a unified position. In September 1975, shortly before the companies jointly acquired Mego’s interest in the WGSH registration, DC started selling belts with a SUPER HEROES common-law trademark. The Plaintiff further prevented competitive use of this generic term from other companies by registering it in the 1980s the same mark was then registered jointly in a number of product categories, including tote bags, cake pans, soap, cookies and entertainment services, in addition to costumes, toys, comics and belts. (741).
Here's a quote from Ross D. Petty's , “The Amazing adventures of Super Hero“ , In fact, DC and Marvel did not wait for actual commercial use of the words “Super Hero” before objecting. They carefully monitored trademark registration applications. Once the applications were published for opposition, they usually did not immediately incur the expense of a formal opposition. Rather, their strategy was to simply request an extension of time to file an opposition. This made their displeasure known to the applicant and typically started settlement discussions. As a result, applicants often abandoned their applications.
DC and Marvel began their joint opposition proceedings strategy in April 1983, just three months before finally gaining the costume trademark rights from Cooper. At this time they jointly opposed the application of Leo A. Gutman, Inc. to register the mark SUPER-ACTION HEROES before the U.S. Patent and Trademark Office’s (USPTO’s) Trademark Trial and Appeal Board (TTAB). The Gutman application had been filed in June 1981 for entertainment services (specifically, distributing movies to television) and published for opposition in November 1982. DC and Marvel may have become aware of the application before its formal publication because they filed for the trademark registration of SUPER HEROES in the same industry category in September 1982. This application was delayed by examiner review, perhaps because of its similarity to Gutman’s mark SUPER-ACTION HEROES, but eventually (March 1984) it was published for opposition, and the mark was registered three months later.56 That same month, Gutman lost its motion to dismiss the opposition to its own registration. Rather than face a trial, Gutman started negotiations, and in December 1984 it assigned its rights to DC and Marvel. The trademark SUPER-ACTION HEROES was registered by DC and Marvel in April 1985.57 (742)
Ross D. Petty continues, “DC and Marvel’s registration activity and their united opposition to the Gutman application led to a temporary lull in attempts by other parties to register Super Hero–related trademarks. The first half of the 1990s saw six attempts at registration of Super Hero–related marks, all quickly abandoned. While information on the extent to which DC and/or Marvel played a role in these abandonments is not publicly available, USPTO records confirm some three dozen oppositions by the SUPER HEROES co-registrants, as shown in Table 1”. (See page 743 for table)
Like my case with the Plaintiff, DC and Marvel over filed extensions, but in the case noted below, “As shown, of the 36 DC and Marvel oppositions and extension requests identified, only one was not successful: BURGH MAN PITTSBURGH’S SUPER HERO. This one failure was caused by requesting extensions of time to file opposition papers beyond the total amount of time allowed by TTAB rules.”.
The USPTO did not comply to these same rules in my case. I feel that you've allowed the Plaintiff too much time in this case to drag out before I was severed with proper documents. You've allowed the Plaintiff more rights in pursuing me than should have been allowed. The Plaintiff has a gross history of attacking potential competitors from utilizing the generic term “Super Hero” or in my case, “Cup O java Studio comix A world without SuperHeroes”, which you've allowed the two companies Marvel and DC to create a Duopoly.
On page 748, Ross D. Petty illustrates,”In retrospect, it appears doubtful that either Cooper or DC and Marvel initially masterminded a scheme to broadly control trademark rights to Super Hero. Cooper simply wanted a single “umbrella” term it could use exclusively to describe the costumes made under license from both DC and Marvel. The latter appear to have been unaware of Cooper’s efforts until after the trademarks were obtained. It was only when Mego imitated Cooper by applying for the WORLD’S GREATEST SUPER HEROES trademark that DC and Marvel appeared to realize the value of trademark control. Once they agreed to a cooperative effort, they worked hard for that strategy to succeed.
In this case being the second mover appears to have had distinct advantages for the “Super Hero duopoly.” Because a single company (Cooper) registered the mark for a peripheral product category (Halloween costumes), DC and Marvel were largely able to avoid questions about whether the mark was generic or merely descriptive for the product category (comic books) and whether it was appropriate for two market-dominating competitors to jointly register the mark. Each of these questions is briefly discussed below.”
In addition, I argue again the absurdity of this dual trademark which has been allowed to be continually owned by these two vast corporations Marvel and DC which are both owned by larger corporations much larger known as Warner Bros. And Disney. A person like myself or any other of the companies mentioned above does not have the capacity or the collateral to continue defending ones own registered mark to great lengths, because I am a simple working man in a start up company and these organizations have unlimited wealth from various sources which can possibly dated back to existence of slavery.
On the latter page of 748Ross D. Petty continues, “Courts have also rejected not just generic product names but also generically descriptive terms, such as “brick oven” for frozen pizza, “crab
Ross continues on 749, “Even if we consider the most obvious generic term for DC and Marvel’s primary products in 1966 (the year of Cooper’s initial registration) to be “comic books,” these court decisions suggest that “Super Hero” might still be descriptive. However, licensing of established Super Hero characters soon thereafter overshadowed comic books in terms of revenue, and DC and Marvel claimed ownership of the vast majority of such characters. If DC and Marvel are considered Super Hero entertainment and licensing companies, rather than merely comic book publishers, the question of whether “Super Hero” is a generic or descriptive term is even a closer question.
This question is critical because the various DC and Marvel Super Hero marks have achieved “incontestable status,” meaning they can no longer be challenged for being merely descriptive but could be challenged for being generic.63 Tellingly, USPTO records indicate trademark examiners refused registration of the marks SUPERHEROES OF THE CIRCUS and SUPERHERO NETWORK by parties other than DC and Marvel because both were deemed merely descriptive of the type of entertainment that would be offered.64”.
60. In re 1800Mattress.com IP, LLC, 586 F.3d 1359, 1362-63 (Fed. Cir. 2009).
- Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111 (1938); DuPont Cellophane Co. v. Waxed Prods. Co., 85 F.2d 75 (2d Cir. 1936).”, house” for restaurants, “honey brown” for ale and “Dutch chocolate” for ice cream.62
- See Trademark Application No. 78581102 (Mar. 5, 2005); Trademark Application No. 76474251 (Dec. 9, 2002)62. See Schwan’s IP LLC v. Kraft Pizza Co., 460 F.3d 971 (8th Cir. 2006); Hunt Masters, Inc. v. Landry’s Seafood Rest., 240 F.3d 251 (4th Cir. 2001); Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137 (2d Cir. 1997); Carpenter v. Borden Co., 147 F. Supp. 445 (S.D. Iowa 1956).
Also, Petty shows clearly the inconsistency of the Plaintiffs usage of their trademark and its generic usage of their markRoss states,” In deciding whether a mark refers to a category of goods or services or a specific product source, courts consider several factors, including generic use by the registrant or competitors, dictionary definitions,65 media usage, testimony of people in the trade, and consumer surveys.66 The fact that characters from other sources have been described as Super Heroes since 1934 and comic books published by multiple competitors have used “Super Hero” in their titles suggests the term is generic”.67 Furthermore, when DC and Marvel used the words “Super Hero,” typically it was not as an adjective to describe a brand of character or comic book. To do so would have emphasized that Super Hero characters were not real. While even children realize this fact, emphasizing it could have dulled some of the enjoyment or interest in the fantasy. Instead, they tended to use “Super Hero” as a category of person (or fictional character). For example, in promoting its new offerings in the 1960s, Marvel used laudatory taglines that often included generic use of “Super Hero.” In Iron Man’s debut it asked, “Who? Or What, is the Newest Most Breath- taking, Most Sensational Super-hero of all...?”.68 Thor was described as “The Most Exciting Super-Hero of All Time!”69 When these two joined with others to form The Avengers, the group was described as “Earth’s Mightiest Super-Heroes.”70 When Marvel introduced the X-Men in 1963, the caption above the title proclaimed them “The Strangest Super-Heroes of All!”71 In 1966, The Marvel Super Heroes animated cartoon series debuted in television syndication. In addition to use in the series title, the series theme song used “Super Hero” or “Super Heroes” nine times.72 In 1965, Marvel formed a fan club called the Merry Marvel Marching Society, whose theme song promised fans that they, too, could be a Super Hero if they marched to Marvel’s music.73 Last, in 1977, when Marvel reintroduced many of its golden age Super Heroes, it described the group on the cover of a comic as “The Greatest Superheroes of World War Two.”74 (See page 750)
On 751, I continue to uphold my arguemnet which Ross D. Petty continues to state, “DC also has used “Super Hero” generically. On the cover of its Legion of Super Heroes debut in the April 1958 issue of Adventure Comics, Cosmic Boy announces that Superboy could not join their “Super-Hero Club.” In 1959, DC reprised its Legion of SuperHeroes in a title story, “Prisoner of the Super Heroes.”75 Use of the words in the LEGION OF SUPER HEROES and MARVEL SUPER HEROES trademarks resembles generic use, which ordinarily would require disclaimer of trademark protection for the words SUPER HEROES. Indeed, DC’s own POCKET SUPER HEROES trademark does disclaim SUPER HEROES.76
Last, several specimens filed with the USPTO for renewal of the SUPER HEROES trademark illustrate generic use.77 For example, neither the Super Heroes Stamp Album nor the Super Hero Glue Stick indicates that SUPER HERO is a registered trademark. A comic book specimen filed in 2002 contained an advertisement for medallion coins “that show likenesses of your super heroes.” These likenesses were undoubtedly licensed by Marvel, which thus effectively allowed the generic use of “Super Heroes” in the advertisement. Taken in total, this evidence suggests a strong argument could be made that DC and Marvel use the term generically when promoting their own products and allow such use for licensed products”.
United States, where they employ different U.S. distributors to do so. The TTAB found it appropriate to allow the companies to be joint registrants of the SWISS ARMY trademark because both produced knives to the same high level of quality required by the Swiss military.89 Like Victorinox and Wenger, DC and Marvel are independent competitors. Arguably, each company’s adherence to the Comic Code provides some minimum level of quality control in the sense of avoiding scenes of graphic violence, sex, or drug use.90 However, critics have considered the quality of both DC and Marvel’s offerings to have varied over time and from title to title over the last half of the 20th century.91 Thus, as distinct from the SWISS ARMY case, there is no mechanism here to ensure that both firms will produce virtually identical products to satisfy a single standard of high quality. Trademark registration is intended to benefit consumers by allowing firms to develop unique brands and promote each brand’s unique attributes. In this case, joint registration merely allows the two dominant competitors to distinguish their offerings from those of smaller rivals.92 The inability of smaller rivals to use the highly recognizable term “Super Hero” in a trademark makes it more difficult for them to succinctly describe their offerings. This arguably hinders rather than enhances competition. From a perspective of competition public policy, the SUPER HERO trademark should be cancelled or converted to a collective or certification mark available to anyone producing Super Hero entertainment or products.93”
My final argument of the Plaintiffs prerogative to attack even companies which provide services which the Plaintiff does not cover in their registered mark is stated below.
“the trademark SUPER HERO, they and many others explicitly used the words “Super Hero” in a generic or descriptive sense to promote their offerings. Only Archie Comics’ short-lived Super Heroes vs. Super Villains series appeared to use “Super Hero” in a trademark sense. By the 1980s, however, other comic book publishers had been effectively discouraged from using the term “Super Hero” altogether. TV shows such as the 1980s’ The Greatest American Hero and the current Heroes, as well as various relevant movies, also appear to deliberately avoid using the term. National Public Radio recently reported that an independent comic publisher changed one of its titles from Super Hero Happy Hour to Hero Happy Hour after receiving a letter from DC and Marvel.95 Thus, consumers who are interested in new sources of Super Hero entertainment may be limited in their ability to find such entertainment because of the joint registration of the SUPER HERO trademark by the industry duopolists.
Furthermore, it appears that while the SUPER HERO mark was a relatively good source of licensing revenue for toys, clothing, and other merchandise in the 1970s and 1980s, more recently few of DC or Marvel’s trademark oppositions have led to additional licensing opportunities under their various SUPER HERO trademarks. Regrettably, as Table 1 shows, their oppositions also may have limited the ability of firms providing education and charitable services to generate excitement among children for their offerings. The oppositions have, moreover, also restricted some for- profit companies, such as cafés and dental services providers, where confusion of sponsorship or affiliation by DC or Marvel seems very unlikely even assuming consumers recognize SUPER HERO as a joint trademark of the two companies. Therefore, I believe that joint registration of the trademark SUPER HERO is inappropriate today, and probably was never appropriate for two dominant industry competitors to undertake. This example serves as a unique case study in trademark law”.
I ask the court for dismissal of this case based on these facts and previous cases and allow me to continue using my registered mark.
Please Note: A hard copy of this will be emailed and certified mail to the Plaintiffs attorney.