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 The Trademarked Name Game

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GoldenBard

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PostSubject: Re: The Trademarked Name Game   Mon Jan 03, 2011 11:40 am

As for the secret identities, how about Willy Watson, his sister Wendy Watson, and their friend Eddy Edelman? The "Watson" names will work especially well if you want to use the name "Captain Wizard," because then the sister become "Wendy Wizard" (with Eddy being "Captain Wizard, Jr." of course).
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PostSubject: Re: The Trademarked Name Game   Mon Jan 03, 2011 12:48 pm

GoldenBard wrote:
As for the secret identities, how about Willy Watson, his sister Wendy Watson, and their friend Eddy Edelman? The "Watson" names will work especially well if you want to use the name "Captain Wizard," because then the sister become "Wendy Wizard" (with Eddy being "Captain Wizard, Jr." of course).
Damn, you're GOOD...I may use that for my other "Young Legends" project. Also, that list of gods is EXCELLENT, thank you.

As it is, my son said (paraphrased) "Why not call her Billie Marvel?" Kinda works, ditching the "Captain" part entirely...do you think it will be a problem having her say "Shazam!" even if it's never used on the cover? I keep thinking about it being Gomer Pyle's favorite word, but, then, DC didn't own the copyright at the time his shows came out and (it's not like anyone would confuse him for Captain Marvel anyway...well, maybe the height...).

Also, I'm wondering if this discussion should be split into a separate thread before it derails this one any further.

Oh, for the sake of continuity with the earlier topic, one of the artists I follow on deviantArt has his own take on the "suit-and-tie" Dan Garret that he simply calls "The Bulletproof Beetle."

In a similar vein, when I was previously working on the "Young Legends" I mentioned (some character sketches are in the Artist Showcase section of the forums here), I was trying to give them new names that referenced their source characters, such as "Tiburon" (The Shark), "Prince Scarab" (The Scarab, duh), "Shape-Lass" (a female take on The Shape), "SheBoom" (Lash Lightning/Lightning Girl), "Lady Terror" (The Black Terror...can you tell an easy way around the name thing is to switch the character's gender?), "Renardine the Fox" (The Fox), and "Big Bozo" (Bozo the Iron Man). Golden Girl has been giving me fits, though...Golden Lass, Golden Lady, Miss Gold, Goldenheart, Goldstandard...none of them sound, well, "right" to me for some reason.
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PostSubject: Re: The Trademarked Name Game   Mon Jan 03, 2011 9:58 pm

A simple warning to anyone looking to use Fawcett's Captain Marvel character: Do your homework on this. Some issues (actually most issues) of Whiz Comics do have Copyright Renewals. Just because a dozen websites say that a particular character or title or an entire line of books are Public Domain doesn't make it so. Also keep in mind that DC Comics fought Fawcett in court for over a decade over Copyright Infringement regarding Captain Marvel until Fawcett finally gave-up the fight. What are the chances that DC wouldn't sue anyone else if another publisher or creator used Captain Marvel today?
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PostSubject: Re: The Trademarked Name Game   Mon Jan 03, 2011 10:53 pm

You make an excellent point, bchat. I've been looking at this purely as an intellectual exercise, but I'd be very leery of using Fawcett's Captain Marvel for anything except maybe some fanfiction that will go nowhere (and, to be honest, although I like the Marvels, I was never enough of a fan that I'd want to bother writing fanfic on them). I would STRONGLY recommend either creating a new pastiche of the characters (and if you look at my earlier suggestions, when you talk about changing the character's name, secret identity, and magic word, that's really what you'd be doing, anyway), or choose other similar characters that are in the public domain and craft them to suit your needs (I think the British character Captain Miracle is in the public domain, and I always thought he looked kind of neat. Check out his page on the International Superhero site: LINK).

Glad you liked the ideas, Heckfire; hope you find some of it useful. I saw your "Young Legends" stuff on DA and was intrigued by this interesting use of the PD characters. As for Golden Girl, I kind of like that name. But if you feel you have to change it, have you considered just calling her "Goldie?" That seems to have a more modern vibe to it, but still keep the original feel.
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PostSubject: Re: The Trademarked Name Game   Sat Jan 08, 2011 6:54 pm

GoldenBard wrote:
You make an excellent point, bchat. I've been looking at this purely as an intellectual exercise, but I'd be very leery of using Fawcett's Captain Marvel for anything except maybe some fanfiction that will go nowhere (and, to be honest, although I like the Marvels, I was never enough of a fan that I'd want to bother writing fanfic on them). I would STRONGLY recommend either creating a new pastiche of the characters (and if you look at my earlier suggestions, when you talk about changing the character's name, secret identity, and magic word, that's really what you'd be doing, anyway), or choose other similar characters that are in the public domain and craft them to suit your needs (I think the British character Captain Miracle is in the public domain, and I always thought he looked kind of neat. Check out his page on the International Superhero site: LINK).

Glad you liked the ideas, Heckfire; hope you find some of it useful. I saw your "Young Legends" stuff on DA and was intrigued by this interesting use of the PD characters. As for Golden Girl, I kind of like that name. But if you feel you have to change it, have you considered just calling her "Goldie?" That seems to have a more modern vibe to it, but still keep the original feel.
Likewise, Bchat, your input is well appreciated...I suppose staying in the "fan-fic" realm for my "SHAZAM!" story is probably best after all. I'm more interested in addressing the conceptual evisceration DC did that making a profit off of it, anyway, so, in lieu of actually getting a job at DC, I will have to content myself with this. FOR NOW, at least, muahahahaaa...

Anyway.

I'm glad I got your interest with my stuff, GoldenBard; the only reason I was changing names was...well, honestly, on the off-off-OFF-chance one or two might get enough interest to spin-off into their own stories, so I'd be able to actually put their names on the cover. Of course, I realized that all I was doing was essentially plagarizing the original characters, which is hard to do with Public Domain but, hey, yippee, I found a way...*sigh*

SO, instead, I've been recently just going back and using their original names anyway. In some cases, I may have gestalt or gender-flipped characters that I'll name myself, but, for the most part, I'm probably just going to stick with their traditional names instead.

I will say, though, "Goldie" is a far better alt-name for Golden Girl than any of mine. Funny sub-note before I derail this thread any further: one of my original plans in my "Billy's Quest" story was to have Mary Batson actually USE the Heart of Gold to become a new Mary Marvel following her training/redemption on Paradise Island after her brother formed the new "SHAZAM" from the six different gods/heroes. The idea was that, unlike her previous power sources, the Heart supposedly wouldn't work unless the user was using the power in pursuit of justice and protecting the innocent, so Mary would be unable to succumb to the corruptions she had before, but, ultimately, she would prove herself worthy of her true powers during a battle where the locket is stolen from her, thus opening the door for a new "Golden Girl/Lad" to fight alongside the Marvels.
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PostSubject: Re: The Trademarked Name Game   Mon Jun 06, 2011 7:24 am

Just another addition to my list of already-used alternate names for people seeking inspiration. In the free RPG "Mystery Men," the author renamed Phantom Lady "Fantome," which I think is a pretty neat name...
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PostSubject: Re: The Trademarked Name Game   Mon Jun 06, 2011 4:47 pm

These are the trademarked names I could think of that would need some alternate names, and the ones I liked enough to put on a shortlist:

Blue Beetle: Bulletproof Beetle, Sapphire Scarab, Blue Bug, Brawling Beetle, Buster Beetle, Blue Brawler

Daredevil: Diadebul, Dangerdevil, The Dauntless Devil, Double-Back, Devil-May-Care, Devil-May-Dare, Daredevil Jack, Stuntdevil, Boomerdevil, Daredemon, Stunt Satan Razz

Captain Marvel: Captain Whiz-Bang, Marvel of Thunder, The Mythical Marvel, Captain Marvelous, Captain Thunderbolt

Human Torch: The Living Torch, The Walking Torch, the Human Flame

Ghost Rider: Wraith Rider

Phantom Lady: Miss Phantasm, Phantom Girl, Phantom Woman, Lady Phantasma

Yellowjacket: Yellow Jack, Ol' Yellajacket, Jack Vespa
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PostSubject: Re: The Trademarked Name Game   Mon Jun 06, 2011 10:32 pm

All these alternate names are very good, in fact, great! I love them all, you guys did great work coming up with some remarkable alternatives.

Curious, though, is there a reference Wiki or other locale on the web to determine which comic book characters are trademarked?

I ask because I thought Blue Lady as a name was Public Domain.
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PostSubject: Re: The Trademarked Name Game   Mon Jun 06, 2011 10:37 pm

Blue Lady is indeed public domain. She hasn't been reused by any major publishing companies as far as I know, so her name is fine to use. I think Malibu just changed her name because they changed pretty much everything else about her.
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PostSubject: Re: The Trademarked Name Game   Mon Jun 06, 2011 10:42 pm

OK, cool.

I like all the alternative names you have for Daredevil. Awesome job.

I really haven't seen any publishers of late try to use any PD characters, at least not since Project: Superpowers. I know both Marvel and DC have some characters with PD roots and names, but any other publishers, haven't seen any.
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PostSubject: Re: The Trademarked Name Game   Tue Jun 07, 2011 12:59 am

PhantomofDoom wrote:
All these alternate names are very good, in fact, great! I love them all, you guys did great work coming up with some remarkable alternatives.

Curious, though, is there a reference Wiki or other locale on the web to determine which comic book characters are trademarked?

I ask because I thought Blue Lady as a name was Public Domain.

There are two places to go to look-up Registered Trademarks: United States Patent & Trademark Office and Trademarkia.

Keep in mind the difference between the two types of Trademarks:
A Trademark marked with a ™ is simply a claim of ownership on a name or logo. It does not need to be registered with the USPTO and will not show-up in the online searches.
A Registered Trademark uses ® and that is what shows-up in online searches.

"Blue Lady" will always be Public Domain. The only thing a TM does is give one company or individual the exclusive use of a name to sell/promote a product. So, while only one comic book publisher may be able to publish a comic with the title "Blue Lady", that does not give them exclusive use of the Public Domain character. A good example would be "Captain Marvel", where Marvel Characters Inc has registered the name with the USPTO, so that Marvel Comics is the only company that can publish a "Captain Marvel" comic book, but DC Comics can still call their character "Captain Marvel" within the pages of their books.

"Hack/Slash" had several characters appear that were based on Public Domain characters. "Super Sidekick Sleepover Slaughter" parts 1-3 (issues 30-32 of the Devil's Due series) had variations of The Heap, US Jones, Nightmare, The Crash Kid and Fantomah.
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PostSubject: Re: The Trademarked Name Game   Tue Jun 07, 2011 1:12 am

@bchat: Great! Thanks again. Getting great info. I need to keep all this in my memory banks or at least write it down. Grateful you have that info.

It still irks me that DC "can't" say Captain Marvel's full name in the comic book or on the covers. Its asinine. DC has managed to sidestep it by examples you've given and ones I've read, calling Captain Marvel in DC "Marvel" or "The Captain".

Thanks so much for the fill in about Hack/Slash's use of PD based characters! Awesome, good to know. Never read the title but I know it has a sturdy following.

This brings me to another issue just to chew on.

What effect, if any, will this "revamp" of DC have on Captain Marvel in particular? Any speculations?
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PostSubject: Re: The Trademarked Name Game   Tue Jun 07, 2011 2:22 am

PhantomofDoom wrote:
@bchat: Great! Thanks again. Getting great info. I need to keep all this in my memory banks or at least write it down. Grateful you have that info.

It still irks me that DC "can't" say Captain Marvel's full name in the comic book or on the covers. Its asinine. DC has managed to sidestep it by examples you've given and ones I've read, calling Captain Marvel in DC "Marvel" or "The Captain".

Thanks so much for the fill in about Hack/Slash's use of PD based characters! Awesome, good to know. Never read the title but I know it has a sturdy following.

This brings me to another issue just to chew on.

What effect, if any, will this "revamp" of DC have on Captain Marvel in particular? Any speculations?

DC can and has called him "Captain Marvel" inside the books, it's only on the covers where they have to dance around the problem. It's not a huge hurdle in as much as it doesn't hurt their ability to tell a story, but I definitely see it as really hampering DC's ability to have this character reach his full potential, as having him appear in a "Captain Marvel" comic would work better for him than anything called "Shazam", which has to confuse people who don't know the character's legal history. I think the best title DC has come-up with to get around the TM problem is "Billy Batson & The Magic of Shazam".

I kind of stumbled across the Hack/Slash storyline without really knowing much about the series itself, seeing a cover of the first part of that story somewhere. It's not a title I would read on a regular basis, but that particular story was fairly solid.
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PostSubject: Re: The Trademarked Name Game   Tue Jun 07, 2011 5:28 am

Lots of good info here, and I really liked your list of alternate names, Vagrant. One day I'm going to have to compile all these possibilities into my earlier list so that everything is in one place...
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PostSubject: Re: The Trademarked Name Game   Tue Jun 07, 2011 10:44 am

This leads me to the question of what I'd call Namor, the Sub-Mariner. He's a pretty hard one to do names for, given that Namor itself is trademarked so either you alter his actual name or play with the Sub Mariner title.

The Deep Mariner? Lord Mariner? Nomar the Submerger? Who knows, he's a toughie, that's for sure.
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PostSubject: Re: The Trademarked Name Game   Wed Jun 08, 2011 8:39 am

Vagrant wrote:
This leads me to the question of what I'd call Namor, the Sub-Mariner. He's a pretty hard one to do names for, given that Namor itself is trademarked so either you alter his actual name or play with the Sub Mariner title.

The Deep Mariner? Lord Mariner? Nomar the Submerger? Who knows, he's a toughie, that's for sure.

Not one of my favorite characters so I haven't given it much thought (and like Captain Marvel, good luck not getting sued... probably more so, because Marvel has proven itself to be wildly ligitious over the years). But just off the top of my head, how about "Nemo, the Marine Man?"
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PostSubject: Re: The Trademarked Name Game   Wed Jun 29, 2011 1:06 am

A few other possibles for the Blue Beetle:

Beryl Beetle
Blue Banneret (a banneret is a type of knight. I realized that BB's outfit isn't particularly "beetle-like," but he does wear chainmail armor! Besides, Dan Garrett is a policeman, and cops are often known as "blue knights," so this seemed like a valid name)
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PostSubject: Re: The Trademarked Name Game   Wed Jun 29, 2011 10:38 am

How about"blue Scarab"?
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PostSubject: Re: The Trademarked Name Game   Thu Jun 30, 2011 8:20 am

Sapphire Scarab is a pretty good name, in my opinion, it just clashes with the Nedor Scarab a little bit. Also, getting away from the Beetle motif completely is definitely a viable idea, since he doesn't look like one at all and has no real ties to one in his origin.
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PostSubject: Re: The Trademarked Name Game    Sun Jul 03, 2011 4:28 pm

I think most folks have it wrong on trademark. Yes, you can own a trademark to identify those "products" you own, such as "Spider-Man" Brand Comic Books, or "Superman" Brand Comic Books. However, this exact issue came up in a supreme court case, which I thought would be helpful here. It's called Dastar v. Twentieth Century Fox Film Corp.

Basically, what it says is, you can't tie up a public domain work by trademarking it, or some one would've trademarked "Romeo and Juliet" long ago. So, "Blue Beetle" Brand Comics would likely be unenforceable. Now, you could call it "Joe Smith's Blue Beetle" Brand Comic Books, or even "DC Comics' Blue Beetle" and likely enforce that, but not simply "Blue Beetle" This case frees up Plastic Man, Captain Marvel and even Tarzan.

http://en.wikipedia.org/wiki/Dastar_Corp._v._Twentieth_Century_Fox_Film_Corp.

"In sum, reading the phrase "origin of goods" in the Lanham Act in accordance with the Act's common-law foundations (which were not designed to protect originality or creativity), and in light of the copyright and patent laws (which were), we conclude that the phrase refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. Cf. 17 U. S. C. §202 (distinguishing between a copyrighted work and "any material object in which the work is embodied"). To hold otherwise would be akin to finding that §43(a) created a species of perpetual patent and copyright, which Congress may not do."

-from Dastar v. 20th Century

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PostSubject: Re: The Trademarked Name Game   Tue Jul 05, 2011 4:10 am

kevinryanvt wrote:
I think most folks have it wrong on trademark. Yes, you can own a trademark to identify those "products" you own, such as "Spider-Man" Brand Comic Books, or "Superman" Brand Comic Books. However, this exact issue came up in a supreme court case, which I thought would be helpful here. It's called Dastar v. Twentieth Century Fox Film Corp.

Basically, what it says is, you can't tie up a public domain work by trademarking it, or some one would've trademarked "Romeo and Juliet" long ago. So, "Blue Beetle" Brand Comics would likely be unenforceable. Now, you could call it "Joe Smith's Blue Beetle" Brand Comic Books, or even "DC Comics' Blue Beetle" and likely enforce that, but not simply "Blue Beetle" This case frees up Plastic Man, Captain Marvel and even Tarzan.

http://en.wikipedia.org/wiki/Dastar_Corp._v._Twentieth_Century_Fox_Film_Corp.

"In sum, reading the phrase "origin of goods" in the Lanham Act in accordance with the Act's common-law foundations (which were not designed to protect originality or creativity), and in light of the copyright and patent laws (which were), we conclude that the phrase refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. Cf. 17 U. S. C. §202 (distinguishing between a copyrighted work and "any material object in which the work is embodied"). To hold otherwise would be akin to finding that §43(a) created a species of perpetual patent and copyright, which Congress may not do."

-from Dastar v. 20th Century


DC Comics could very easily register a Trademark on "Blue Beetle", they simply choose not to, most likely because they don't want to spend the time & money on it. My guess is that numerous failed comic series spread-out over many decades probably weighs heavily on that decision. If the title hasn't lasted more than a few years at a time since the 1950s, why fork-out the money for yet another series that will probably be cancelled before the USPTO grants the registration?

There are plenty of examples of Public Domain characters having their names registered by various comic companies: Marvel owns the name "Captain Marvel" & "Thor": Super Power Heroes LLC owns the name "Black Terror": Archie owns "The Shield": DC Comics owns "Plastic Man"; Edgar Rice Burroughs Inc owns "Tarzan". Owning "the name" does not mean that nobody else can use a character or story that's in the Public Domain, it only means that they have to be careful how they market their products so they do not infringe on someone else's Trademark.

This case doesn't free-up Plastic Man, Captain Marvel or Tarzan in regards to Trademarks. Companies do own those names today and they will happily sue anyone who tries to infringe on those TMs. All this case did was set a precedent that allows anyone to take material from the Public Domain and treat it as if they owned it themselves ... in other words, Dastar had every right to take the Public Domain films, re-edit them, and release them without having to worry about satisfying the needs or desires of anyone else. The problem Dastar ran into specifically was that they added something NEW to their film that was based on material from the book, which the author (Dwight D. Eisenhower) still owned the Copyrights to and had licensed to Fox.
Basically, the end result of this case has little to do with Trademark laws BUT everything to do with the Public Domain and how it may be used. There was no TM infringement, and thankfully, the Supreme Court recognized that. On the other hand, there WAS Copyright infringement, and Dastar got nailed for it.
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PostSubject: Subject: Re: The Trademarked Name Game   Wed Jul 06, 2011 1:23 am

Bchat -

Yes, of course DC could file a trademark on Blue Beetle….or on the word “tire iron”, but it doesn’t mean they legally hold a trademark on it. What has broiled me, over the time I’ve been studying what is and is not intellectual property, is some of the terminology used and some gross misunderstanding of what constitutes IP and ‘protection”.

Copyright protects creators, by giving them the right to exclusively benefit from their works, in order to promote “useful arts’. The idea being that if anybody can grab stories you put out in the marketplace, then there is no profit incentive, and thus many less stories. Trademark, as the courts have found time and again, does NOT protect creativity nor creators, it protects the public from being deceived as to where a product comes from, so they don’t buy inferior goods, thinking they are from a different source.

So let’s start here: NO ONE “owns names”, as you put it. What they might own, are stories, and by reference, characters in stories. They do not own “types”, the characters have to be specifically delineated so as to be unique, or they don’t qualify for protection. I can call my characters Captain Marvel, Thor or even Batman, all day, and I haven’t violated any copyrights or trademarks. However, when my characters look like the DC, Marvel or other corporate owned characters that I begin violating. Can they sue me? Of course, I already said that. I could sue you, now, on the grounds that you have violated my right to…um….present ideas. Now will I win, not likely at all, but I could sue.

Now, copyright is for a limited time, very specifically. The idea here is that if Congress creates a copyright that goes on forever, then the “useful arts” are not promoted. So once a story, including its’ characters, enter public domain, either through allowing the copyrights to lapse, failure to renew or even possibly be not acting on others’ use of them for years or decades (laches), those stories and characters are for all to use, forever.

Trademark, on the other hand, can exist forever, unless you stop marketing a product, in which case, since you no longer offer it, the product is no longer “A mark of your trade”, so you don’t control the trademark. In order to control a trademark, the public must believe that you are the producer of that product, such as Pepsi Brand Cola being a product of the Pepsi-Cola Corporation. Since no one “produces” Thor, no one could reasonably infer that any Thor Product they see for sale comes from Marvel Comics, because Thor existed 3000 years before Marvel did. Now, what Marvel DOES own, most likely, is the stylized logo that one might see on a comic book called “Marvel Comics Presents: The Mighty Thor”, which identifies clearly where this comic book came from.

Tarzan is an interesting case all in and of itself. The book, “Tarzan of the Apes” came out in about 1910, meaning it is well out past the statuory limit of 95 years and in every way public domain, including all characters in that book, namely, Tarzan himself. So, how could I possibly get sued? Well, anyone can sue me for anything, as I’ve said. Danton Burroughs, the grandson of Edgar Rice, author of Tarzan, was great with suing, he loved suing. Most of the time, that went nowhere. Now, what does the Burroughs estate own? A stylized logo found on many Tarzan Brand Products.

Let’s look at Black Terror for a minute. What company makes Black Terror again? Well, it started as Popular Library, owned by Ned Pines. He sold that company to Fawcett, who sold it to Warner, which may or may not have included copyrights and which may or may have not included Black Terror stories. Since that time, Black Terror’s uniform is essentially the same as the Punisher's and exactly the same as Mr. Bones of Infinity Inc. Bill Black at AC has published Black Terror, Alan Moore at ABC used Black Terror and now, Dynamite as Super Power Heroes LLC publishes Black Terror. So who the hell owns Black Terror??? The right answer is probably nobody. After all these years, and appropriations of BT, the public does not associate him with anyone company or source, and no one has enforced copyright in 60 years..he’s open game. How does Dynamite get away with claiming a trademark? They just do. One can claim anything. Once again, they only thing they own are distinct likenesses, such as logos, period. If I wanted to publish Ryan’s Black Terror Comics, starting tomorrow, I could…..and that, being distinctive and showing origin, would be a trademark.

Lastly, lets take Dastar. That case very clearly has everything to do with trademarks and is held up in law schools as a landmark trademark case, so how you get that it has nothing to do with trademarks is beyond me. What Dastar did, is use public domain material to make and sell a set of DVD’s, based on a documentary Twentieth Century Fox originally produced, but did not properly copyright renew. Twentieth sued, and long story short, the US Supreme Court said you cannot use a trademark protection claim to stop someone from using public domain work, period. If Dastar had claimed they were Twentieth Century Fox, THAT would be a trademark issue. Yes, Dastar got nailed by a District Court because even though the film had been public domain, the book, Crusade in Europe, was still under copyright, and the films were derived from the book. No, Eisenhower did NOT own the copyrights to the book during the lawsuit and there was nothing new in the films at all.

BTW, suddenly, DISNEY claims they hold the Tarzan trademark...really? Character has been around since 1910, has been produced by dozens and dozens of media companies.....and somehow, the public identifies Tarzan as a DISNEY character? Fat chance...if that's true, I own George Washington, William Shakespere and um.....Father Neptune.

K
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PostSubject: Re: The Trademarked Name Game   Wed Jul 06, 2011 3:30 am

Kevin, I think you have one thing wrong...you DO trademark a name, not just a logo. My favorite example, for sake of simplicity is Apple Computers. It doesn't matter what your logo looks like, you can NOT sell computers and call them Apples. It would even be questionable if I called them Argosail's Apple Computers.

Now, apple doesn't own the name "Apple"....I could create a line of jeans called "Apple Jeans"...but Apple is the only company that can use that name in reference to electronics and it doesn't really matter what the logo looks like.

The only reason you can't trademark Romeo and Juliet is because you'd be facing an unwinnable battle for exclusivity in fiction. But you could trademark Romeo and Juliet Computers.

DC could have a case on Blue Beetle because nobody else is using it! They could acquire exclusive rights!

That doesn't mean they own the phrase "Blue Beetle" and they don't own the character name. You can use it as freely as the word/name Thor. You just can't brand your comics "Thor" because Marvel has the exclusive rights to "Thor" brand comics, regardless of the logo. The current Thor logo is also trademark AND copyright protected. But marvel can't stop you from calling a character Thor, if it doesn't have the unique attributes of the Marvel version, just as you can use the name Batman, as long as it has absolutely nothing in common with the DC character (if, for example, it was a guy who carves baseball bats or it was an actual human-bat hybrid that was brown and lived in a jungle terrorizing villagers). Beeing a thunder god with blonde hair and a hammer are not attributes exclusive to the Marvel version, so you can use the base attributes, just as you can use the public domain attributes of Blue Beetle and identify him freely by the name originally attributed to him...
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bchat



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PostSubject: Re: The Trademarked Name Game   Wed Jul 06, 2011 4:52 am

NOTE: It took me so long to write this that Argosail beat me to the punch by posting while I typed. I'm too slow!

K - I'm not sure you're reading what I type properly. I certainly do not need to be "schooled" on the intentions of the laws concerning Trademarks and Copyrights. Rarely a month goes by that I don't read the actual laws for either.

DC Comics could register "Blue Beetle", and if they satisfy the USPTO's requirements for registration, they could own the Trademark on the name until DC decides the TM doesn't benefit them anymore. How much more "legal" does a Trademark need to be beyond being registered with the US government?

"So who the hell owns Black Terror??? The right answer is probably nobody."
The Copyrights on Black Terror's earliest appearances in comics were renewed, along with a great many publications from "Nedor Comics" (aka Better, Standard, etc). The answer isn't "probably nobody" but "somebody we can't identify". If anything, at best, Black Terror could be considered an "Orphaned Work", but there are no Copyright Laws that deal with Orphaned Works directly (that I've seen, although there are plenty of proposals from Congress that have gone nowhere). Technically speaking, at any point in time, anyone that would have a valid claim to those Copyrights for Black Terror's stories (or any other early Nedor hero) can come along and start one lawsuit after another.

Why did I say the Fox vs Dastar case has nothing to do with Trademarks? Read some Trademark laws and it's pretty clear that it is completely legal to infringe on someone else's Trademark when doing so is essential to selling your product. I've said as much about a million times all over these boards (the Fleischer Superman cartoons, for example). Fox was looking to exploit a loophole in TM Law to crush the competition, but the outcome didn't change the laws that were already in place. Fox lost the part of the case where they cried "Trademark Infringement", and the Supreme Court said that what Dastar did was legal as far as Trademark Infringement in the context of the sale of Public Domain material is concerned. Therefore ... "nothing to do with Trademarks". Could I have phrased what I said better? Sure, but at the end of the day, I feel the case is a better example of what can be done with Public Domain material that's based on Copyrighted works, rather than as an example of how Trademarks function.

I've NEVER said "no one owns names", because that's exactly what a Trademark is. It is a legal claim of ownership on a name, phrase, image or logo to sell a product or service. Marvel, Rune, Valiant, Spawn, Dynamite, Darkness, Dawn, Image, Scarab, Ghost, Quasar, Nova, Venom, ... these are all words that are "owned" by someone in the world of comics.

"No, Eisenhower did NOT own the copyrights to the book during the lawsuit and there was nothing new in the films at all."
Ok, but it's interesting that the link you provided named Eisenhower as the author of the book the movies were based and then also stated that Dastar included narration that was based on the book (which was still under Copyright protection) into their film. If the wikipedia article isn't accurate on those two points, you should have found a more reliable source to direct people to.

"BTW, suddenly, DISNEY claims they hold the Tarzan trademark...really? Character has been around since 1910, has been produced by dozens and dozens of media companies.....and somehow, the public identifies Tarzan as a DISNEY character? Fat chance...if that's true, I own George Washington, William Shakespere and um.....Father Neptune."
That's the trap I see a lot of people fall into. They confuse ownership of a Trademark as being the same as claiming ownership of material in the Public Domain. Disney isn't do anything wrong by securing Trademarks for a movie, cartoon or tv show. In fact, what they're doing is perfectly legal. Unfortunately, someone sees something like this and thinks "they're stealing from the Public Domain". No, they're not, because they can't. Trademarks do not affect Copyrights ... never have, never will. It's "packaging" (Trademark) and "contents" (Copyright). Legally, they're separate concepts, governed by different sets of laws.

Regarding "Thor": Marvel Comics absolutely has a Registered Trademark for "Thor", and have since 1973. In fact, they have several Registered Trademarks on the name that are currently active. I don't understand how you could think they don't or can't.
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PostSubject: Re: The Trademarked Name Game   Wed Jul 06, 2011 5:04 am

Sorry, Argosail ,

I must disagree with you. I think, however, you’ll understand what I’m saying is a little more nuanced than you think. You do not, ever, never, “trademark a name”. What you are doing is more like indicating that a particular symbol or mark is distinctive to your product or service. What burns me is when I hear talk that DC “owns the name” such-and-such, because, legally, there’s no such thing. What DC can certainly do, within reason, is “hold the trademark” on something. Technically, that’s very different.

I am not a lawyer, but I have done a great deal of research into this, including looking at specific cases, a lot of them, more than I’d actually care to have, really, but I wanted to really be clear on how this works. There is far too much misinformation out there, especially about comic books. I do not participate on PDSH wiki, for a specific reason. When it first began, I tried to explain, in detail, with references and footnotes, why, for example, Captain Marvel is public domain. I know the whole story, start to finish of why. But nope, I was told, DC “owns” him, and that’s that, we’re not using him. I walked away. Well, Captain Marvel is in there now, because Cash Gorman finally convinced them that a character whose first appearance is public domain, is…well, public domain. It doesn’t matter if DC Comics hires every law firm in the country, he’s still public domain. Please at least hear what I’m saying about Trademark, I’m not just writing this off the top of my head.

Apple Computers, by the way, seem to believe they own the terms “Apple”, “Safari” and anything with the letter “I” at the beginning of it. They will sue almost anybody, anytime. Sometimes they win, sometimes they lose. You can absolutely come out with Argosail’s Apple Computers, however, I’d bet you’ll get sued, and in that case, you’d probably lose, because “Apple”, in and of itself, doesn’t have anything to do with computers, except as a trademark of Apple Computers. What we’re talking about in terms of comic book characters is different. The three rules of thumb with regards to Trademark, in my book, are: 1. Anybody can sue you for anything. 2. Nobody is going to care, unless you’re making a ton of money. 3. The law doesn’t mean anything, until the Man in the Black Robe says it does. So, what we’re talking about, really, is what is likely and not likely to happen, not what the law IS, concretely speaking.

Let’s take your two examples, starting with Blue Beetle. DC owns Jamie Reyes, in my book, no question. However, working backwards, Charlton until 1968 did not put correct copyrights on their books, so, for the same reason as Thunder Agents, both Ted Kord and Dan Garrett ARE public domain, no matter what you get told, or whether you hear DC “bought” the rights or not. Truth is, the screw up in copyrights was made by Dick Giordano as Editor at Charlton in the 1960’s, who would’ve been the same guy to buy those rights at DC in the 1980’s. So why wasn’t this ever discovered? Because Dick never admitted his mistake. Besides, I discovered it, right here. I own a copy of Captain Atom #83, and there is no proper copyright on it. Further back, Dan Garret was published by FOX, and Holyoake, some of which was copyright renewed, most not, so everyone is in general agreement that that version is PD.

Now, Blue Beetle is in public domain for the most part, at least everything up until 1964. The logo that was used even by DC through the 1990’s is practically the exact same one that Fox used back in 1941. So, who gets the trademark? The public barely knows who Blue Beetle is, and although comic collectors know he “is a DC Character”, the point with trademarks is that the public would have to associate Blue Beetle with a sort of corporate identity, in other words, Blue Beetle is DC, which is Blue Beetle. The comic collecting public, for the most part, knows that Beetle has been published over the years by DC, National, Fox, Holyoake, Charlton, IW, AC/Americomics and even Image and was actually created by Iger Studios, so, who is the “producer” or “origin of goods” for Blue Beetle Brand Products??? The answer, according to the US Supreme Court’s Dastar decision is……nobody. It’s public domain, and as a trademark, it’s generic. This has never been “proven” in a court, but I’d bet this is how it would come out. DC cannot simply walk into the middle of this and say “Mine, all Mine! We own the rights to Blue Beetle!” They did not originate him, the did not legally obtain him, he is public domain, and you can’t beat that by some legal “squatter’s rights” trickery.

Next, lets take THOR. Aside from predating Marvel Comics by about 4000 years, thereby being public domain (one would think) one could say that all Marvel owns is a very specific Character called Thor, with long blonde hair, a square hammer and a funny metal helmet. This is especially true when you note that the traditional Thor has red hair, a beard and his hammer is shaped like an axe. Except there’s one problem. In 1940, Fox issued Weird Comics #1, which featured “Thor, God of Thunder!”, who has, coincidentally, long blonde hair, a square hammer and a funny metal helmet. THAT version of Thor is also public domain, so Marvel is kind of left with a cool logo that they can own as a trademark, but that’s it.

That the Marvel Thor is a “swiped” character is not difficult to show, really. Yes Kirby was a comic book god, but he was not above using or re-using older material. Kamandi turns up in a 1950’s story, Dr. Doom is in an early 1960’s story about a giant, The Challengers of the Unknown are roughly Doc Savage and his buddies and even the Moebius Chair shows up 20 years before New Gods. So, with Thor being a public domain character, is it likely Marvel could defend it’s Trademark of Mighty Thor Comics? Yes, and no.

Marvel could claim that the public is confused by multiple Thor Comics. However, they would then have to explain why Fox had its own Thor, as did Quality, Fawcett, DC, etc, etc. Now the logo and the term “The Mighty Thor” would be a valid trademark, but Marvel would have a tough time explaining to a judge that the world thinks they are the sole source for books about the Thunder God of Norse Myth. Maybe that’s why Marvel didn’t bother suing Asylum Video for putting out the movie “Almighty Thor”.

http://en.wikipedia.org/wiki/Almighty_Thor

My point is, worry less, make more super-heroes!

Very Happy
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