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 Is the Black Cat's name trademarked?

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captain napalm



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PostSubject: Is the Black Cat's name trademarked?   Sat Feb 25, 2012 6:05 pm

I found an article on the Black Cat (the Golden Age one) on the Public Domain Superheroes website, which says that the Golden Age version of the Black Cat is public domain--except the last three reprint issues, which are under copyright, but don't worry about that, my real question is this:

Then it says: "Also, Marvel comics owns the trademark to the name Black Cat. "

What, exactly, does this mean? That I can't use the name Black Cat, but I can use the character with a different name? Or that I can use the character, since that was her name, but can't use that name for anything else?
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roygbiv666

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PostSubject: Re: Is the Black Cat's name trademarked?   Sun Feb 26, 2012 3:55 am

Well, something (like the name Black Cat) can be used as a trademark. A search of the US Trademark office doesn't show "Black Cat" superhero/villain as being a "registered" trademark, but you don't have to register something to trademark it, you just have to use it.

From the Public Domain Super Heroes FAQ:
The standard for trademark infringement is called "confusingly similar."
Trademarks can be troublesome, as many Trademarked characters bear the same names as Public Domain characters, but the intention of Trademarks under the law is to protect the consumer from fraud. Hence, if you’re going to print collections of the original Lev Gleason Daredevil, make VERY SURE that NO ONE could POSSIBLY confuse it with the Trademarked Marvel character. Anyone can make a comic book about the Norse God Thor, but if you give him a winged helmet and blue tights with a red cape, that’s asking for a Trademark infringement lawsuit.

“Questionable” characters are just that: they’re claimed by somebody, but MAYBE that claim isn’t valid. An argument CAN be made that Fawcett's Marvel Family and Quality's Blackhawk ARE Public Domain, but DC is huge and you are tiny. Proceed at your own risk.
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captain napalm



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PostSubject: Re: Is the Black Cat's name trademarked?   Sun Feb 26, 2012 4:12 am

Thanks. So, according to that, I can put the Golden Age Black Cat in my comic, as long as I make absolutely sure nobody confuses her with Marvel's current Black Cat? Is that right?

Thanks again--once I've got through the legal stuff, I'll post what I'm working on. (A project involving several original characters of mine, plus quite a few PD characters).
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argosail

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PostSubject: Re: Is the Black Cat's name trademarked?   Tue Feb 28, 2012 3:34 pm

Actually, similarity in acharacter appearance is more like copyright infringement...visual trademarks are on fixed logos, not costume design. So, yeah, don't give black cat white hair or fuzzy fringes on her gloves, boots and collar.

The real issue here is the character's name. You can't create product confusion at point of purchase. You can call Black Cat by her name within a comic or story, but you can't put that name on the cover or in ads, because someone might think that you mean Marvel's Black Cat, which means you'd be trading off their mark. Now, their trademark on the name Black Cat is a little dubious, but it's best not to challenge a company like Marvel if you don't have to. If you named your comic "The Golden Age Black Cat" or something and like that, you would eliminate some of the potential for market confusion, but it's a little subjective.
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captain napalm



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PostSubject: Re: Is the Black Cat's name trademarked?   Tue Feb 28, 2012 4:00 pm

Well, that should be fine--she's not the title character, and actually the newest draft of my story doesn't include her, but I like the character (along with a few others like Black Bat and Captain Triumph, and so on), so they'll probably appear at some point, either if this project lasts longer than the planned 6 issues, or in my next project. (and again, they won't be the title character, so legally no problem as the book's name, on the cover, in ads, etc., will be something completely different. (I'm not sure what yet--I'm bad at thinking of names--but I've put my character concepts in the new open source characters thread)
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BlackAxe



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PostSubject: Re: Is the Black Cat's name trademarked?   Wed Apr 25, 2012 11:51 am

I recently noticed some small details on the covers of the two Marvel Black Cat mini-series that I found interesting. Neither book is titled simply "Black Cat". The first mini-series from the 90's is titled "Felicia Hardy: Black Cat" on the covers (although the words "Felicia Hardy" are rather small) and the more recent series was actually titled "Amazing Spider-Man Presents: the Black Cat".

Could this be taken as an indication that Marvel may not be as secure in their trademark of the name Black Cat?
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argosail

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PostSubject: Re: Is the Black Cat's name trademarked?   Thu Apr 26, 2012 4:28 pm

hard to say....trademarks are tricky, especially when they only last 5 years or so, you have a fairly generic name like Black Cat, which has been used on the cover of comics from the past, and when your own character is still fairly obscure to the general public. I doubt they have any serious challenges to the name though. Most likely, the add-ons to the titles was for the sake of giving you (the reader) more info on the character. In the case of the latter title, it's clearly good marketing to associate the title with Spider-Man...
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captain napalm



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PostSubject: Re: Is the Black Cat's name trademarked?   Fri Apr 27, 2012 5:13 pm

Thanks for the help, guys! (For what story I was planning on using her in/what characters are going to be in that series if it's ever made, check out the "Some potential OS character ideas I'm throwing around" thread in the "new open source characters" section.)
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