The Death of the Superhero Trademark

Last week, a tribunal of the United States Patent and Trademark Office (USPTO) cancelled the registration of famous trademarks dating back to 1967. Those trademarks, jointly owned by Marvel and DC Comics, cover the term “superhero” and several variants of it.

To many, this may seem insane. Most people use the term superhero to describe any hero character with superhuman powers.

However, Marvel and DC have used their trademark registrations dozens of times to either block similar marks or prevent the use of the term in other projects. One of the most famous cases involved the graphic novel Watchmen by Alan Moore. There, he and his collaborators had to avoid tusing the word superhero despite the book focusing on superhero characters.

However, that is no longer the case. In one fell swoop, the USPTO has canceled those marks and opened them up for others to use. This will have a major impact not just on future projects but also on projects that are currently contested using these marks.

So it’s worth taking a minute to examine what happened and why it’s important for future superhero creations.

The Story So Far

According to an article by patent attorney John Rizvi, the first use of the word “superhero” dates back to 1917. However, it didn’t take on its modern meaning until the late 1930s and early 1940s.

In 1967, Marvel and DC filed for a joint trademark on the phrase “super hero.” Despite the fact the two companies were and are competitors, the USPTO granted the registration. After that, they filed for three other marks using variants of the word “superhero.”

Since the original mark was approved, DC and Marvel have vigorously defended it. They have sent warning letters to creators of projects that they felt were too close to the term. Many, if not most, altered their project rather than fighting the much larger companies.

The story was similar when Scott Richold, a UK-based comic artist, began working on his Suberbabies comics. He sought to register trademarks related to the Superbabies name but was challenged by DC and Marvel, claiming that his work infringed on their marks.

However, Richold decided to fight back. He asked the USPTO to cancel the earlier registrations, and the dispute was brought before the USPTO’s Trademark Trial and Appeals Board.

Richold’s arguments were simple. He argued that the term superhero was a generic term that did not signify the origin of a good or service. Furthermore, he argued that DC and Marvel are competitors, so they can’t own the trademark together.

DC and Marvel did not respond to Richold’s petition. Since the petition was unopposed, the USPTO canceled the registrations. With that, over 50 years of trademark protection in the term “superhero” ended.

What it Means

To be clear, the USPTO can’t cancel trademarks. Instead, they can cancel only trademark registrations and registrations aren’t required for a term or phrase to enjoy trademark protection.

That said, this decision makes it nearly impossible for Marvel or DC to enforce these trademarks in the future. It is, most likely, a death blow to the trademark of the term “superhero.”

But what that means moving forward is unclear. However, there are a few things that seem certain.

First, several challenges to superhero-adjacent marks are currently before the USPTO. Those will likely be found in favor of the person filing the new marks. Second, authors like Alan Moore can use the word “superhero” in their newer works. This will likely end the string of synonyms many have used for the term.

Beyond that, it’s difficult to say. We may see more projects with “super” in the name, and we will likely see more superhero-related trademark registrations. That is something that time will tell.

One thing that hasn’t changed is the copyright and trademark protection both DC and Marvel have for their various characters. This protection applies only to the term “superhero,” not to a specific superhero. Using Superman, Wolverine, or any other character in a new work will likely run afoul of these protections.

In short, the term superhero is no longer protected, but individual superheroes very much are.

Happy Birthday to Whom?

Most trademark experts felt that the superhero-related marks were dubious at best. Others have commonly cited Richold’s reasons as grounds for invalidating the trademark and its registration.

Those reasons include that it’s jointly held by two competitors, meaning it doesn’t designate the origin of a good or service and that it’s a generic term that can’t be bilaterally controlled.

However, Marvel and DC had previously defended the mark for nearly six decades. Much of that is owed to creators simply changing their projects or abandoning their registrations rather than fighting. Richold is simply the first to fight the issue to a conclusion.

To that end, there’s a copyright analog to this story: the song Happy Birthday to You.

For decades, most believed the song to be in the public domain. However, Warner/Chappell secured millions in royalties yearly from those using the song. It was simply easier to pay or create a new song than fight.

In 2013, filmmaker Jennifer Nelson sued to challenge the copyright. The court sided with her in September 2015. The two sides reached a settlement in February 2016, with Warner/Chappell agreeing to pay $14 million to others who had unnecessarily paid to license the song.

However, there are two significant differences. First, the Happy Birthday case played out in a federal court, not a USPTO tribunal. Second, Warner/Chappell contested the case where DC and Marvel didn’t respond.

Still, the history of the two cases are remarkably similar, with similar outcomes in the end.

Bottom Line

In the end, I suspect that Marvel and DC didn’t respond because they knew their arguments were, at best, long shots. This is especially true in 2024, as the term “superhero” has become increasingly generic over the decades.

The trademark was dubious when it was filed and has become less tenable over the decades. For Marvel and DC, it was likely time to give it up.

Though the two no longer claim the term superhero, both companies have huge inventories of intellectual property.

In Marvel’s case, this includes over 1,000 live trademarks, including the names, logos and designs of every character you can think of, from The Avengers to Squirrel Girl.

This isn’t likely to harm DC or Marvel and may help other superhero creators establish their own niches.

It also ends one of the best-known trademark quirks, much like the Happy Birthday case ended one of copyright law’s.