The Trademarked Name Game

Bchat,

I’m tempted to say that judging from the content of what you’ve written here, it seems that you do need to be schooled in copyright and trademark, those are your words, not mine. I’m not trying to flame, I’m trying to clear things up. You show me references where I’m wrong, I’ll own up. I just don’t want everyone to think that virtually every idea on the planet is somehow “locked up” by some corporation or other, because, in general, they would very much like people to believe exactly that.

I don’t understand this business where you claim I said that DC can’t register a trademark for Blue Beetle, of course they can. They can register the term “Horseradishes”. That doesn’t give them “ownership” of anything. It’s called “holding the trademark”, can either defend it or you can’t. In the case of trying to tie up a PD work with a trademark, the US Supreme Court says you can’t.

I’ll stand by the idea that probably nobody owns Black Terror. Yes, the earliest appearances are renewed for copyright, so they would be technically protected today, so there must be a reason why nobody has sued yet. I will assure you that Mr. Pines does have heirs. Most of the “Nedor” characters were bought from packaging houses, and the terms of those agreements with Pines are murky and probably would be confusing and expensive to litigate. Also, since you are familiar with legalese, you must be familiar with laches, which means more or less, move it or lose it. A court could very well say, since you never perused your legal rights when they were violated by Marvel, DC, AC and God knows who else for the last 65 years, the people using that character are acting as reliance parties and have good assurance that the character is public domain as orphans, so for all essential purposes, the character is.

As for Dastar v. Fox, I have read some trademark laws, so please don’t insult me. It is legal to infringe on trademarks when it is essential for sales of the product, and when the use is comparative as well. None of this changes the fact, that Dastar concerns a claim under the Federal Trademark Law, the Lanham Act specifically, and is a TRADEMARK case. It not only says how trademarks work, it says how they do not.

I’m well aware that you never said no one owns names, I pointed out that you were dead wrong about that, and I’ve explained that point thoroughly. Once again there is NO ownership of a trademark, that is NOT what trademarks do. Trademark law protects the PUBLIC, not the source, so you can make the claim that the mark represents you, not that you own the mark. Marvel and some of the others are widely known marks, and easily protectable, the use of words such as Nova, Dynamite, Dawn, Scarab and Ghost are NOT. Several companies use those words as titles and trade dress of comic books. Please point out one example of a trademark case over something like this in comics. I'll just use Nova as one example. Marvel owns Richard Rider as Nova, as well as Frankie Raye as Nova, Herald of Galactus, but DC owns Nova as a Silver Age disguise of Superman and more recently, of Booster Gold in 52.

Seriously, on the Eisenhower thing, please, if you’re going to try and belittle me regarding IP law, do the damn research. Yes, as my link noted Dwight Esienhower was the author of “Crusade in Europe” AND Dastar used narration in their DVD release based on that book, which was still under copyright. However, Eisenhower did not hold the rights, Doubleday Publishing did. The narration in the Dastar DVD was the same as the 20th Century Documentary, which was based on the book, not anything Dastar created new. Everything I said stands. Here’s another link:

http://www.dailyjournal.com/cle.cfm?show=CLEDisplayArticle&qVersionID=83&eid=843314&evid=


Yes, Disney DID do something wrong by claiming and securing trademark over the property of Tarzan. The Lanham Act provides for criminal penalties for false claim of trademark, but it’s rarely, if ever, enforced, nor am I calling for it here. On top of that, making a willful misrepresentation of fact is a criminal act under 18 USC 1343, so sorry on the Tarzan thing. Disney can legally, claim a mark on the Tarzan logo, the trade dress, established by the Burroughs, and the copyright on the original work in their film, but that’s about it.

On Thor: Of Course, as I’ve said, over and over, YOU CAN REGISTER A TRADEMARK FOR ANYTHING. However, under Dastar, you cannot succeed in bringing a claim if the underlying work is PD and the mark is not sufficiently distinctive.

On just about every count here, wrong, sorry.

K

You claim that you don't want to "flame", then you claim that I tried to "belittle" you. I wasn't trying to belittle you about the link, but questioning why you were directing people to a site that had incorrect or missing information. The "Eisenhower" thing? Let it go already. Does the fact that he personally didn't hold the Copyright to the book really change anything about the Fox/Dastar case?

"I’m well aware that you never said no one owns names, I pointed out that you were dead wrong about that, "
So, if I never said "no one owns names", how could you then tell me I was wrong about something I never said?

RE: Disney & Tarzan. You obviously missed my point. I wasn't commenting on Disney trademarking "Tarzan", only that Disney has the right to register a trademark on whatever they are allowed to, even names from Public Domain sources that may be available at any given time. I don't have any information regarding Disney TMing "Tarzan" so I refrained from commenting specifically on that issue. You seem to think I did.

"I don’t understand this business where you claim I said that DC can’t register a trademark for Blue Beetle,"
I never said any such thing. From one of your previous posts:
"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. "
My response:
"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?"
Tell me where I say that you claimed "DC can't register a trademark for Blue Beetle"? Seriously, I'm not seeing it.

By the way ...
"it seems that you do need to be schooled"
... that's insulting, and I don't appreciate it.

"Yes, Disney DID do something wrong by claiming and securing trademark over the property of Tarzan."
It's comments like this that lead me to believe you are either blurring the lines between Trademark and Copyright laws, or you are simply choosing your words poorly. You can't secure a Trademark on a Copyrighted or Public Domain work ("property"). That's not what Trademarks are for.

Kevin, I truly and deeply appreciate your passion for educating the public on issues regarding the public domain. I set up this forum, precisely for the purpose of debating the gray areas of the law, so we can all understand our rights a little better, and promote healthy and legal use of our common cultural heritage. I believe you are a great asset to this forum, but I believe you might be letting your passion get the better of you, as you've been a little harsh with bchat. Bchat has demonstrated himself time and again to be thoughtful, well informed and equally passionate about public domain issues and comics. We are all friends here, so let's try to respectfully disagree and state our cases humbly. Sorry if I'm being preachy, I just want this forum to be a united front for creators looking to build off of the public domain. We need good soldiers like you and bchat to help champion our rights against the big corporations who would swallow up the public domain if they could. It is important for us to get our facts straight and not just champion wishful thinking. Occassionally we're going to disagree, but I'm confident we can work it out. Let's fight together!

Bchat -

If you want this to go back to a discussion of correct information, lets ratchet this back.

Yes, I did say I do not want to flame here, and I did say you were trying to belittle me. Those comments were in two different contexts. The comment about “schooling you” was in response to what you said about “I don’t need to be schooled”. If you misunderstand trademark, as I believe you do, then giving you better information is what I’m trying to do. I’m not trying to “one-up” you.

The link I said you were trying to belittle me about WAS the Dastar v. Twentieth Century article on Wikipedia. It had neither incorrect nor incomplete information, so my sending people there has nothing inappropriate about it. By stating that was so, you are attempting to belittle me, and you’re doing it again. Eisenhower was the author of “Crusade in Europe”, He was not the rights holder, as it was a “work made for hire” and yes, the fact that he didn’t hold the copyright changes EVERYTHING about the resolution of the Dastar situation. The successor company lost the subsequent copyright case because had Eisenhower been the rights holder, Fox would not have been party to a copyright suit, and no infringement would have been found.

As for “owning names”, you’d said, and continue to claim, that a trademark allows parties to “own names”. I said, quote, “no one owns names, as you put it”. What I meant was, you used the “owns names” phrase, and that is not a correct phrase to use in the context of trademarks. What is “owned”, or more correctly, “held”, is a mark of trade, which CAN be a word, but must be distinct in relation to the product. What I’m trying to point out here is that there is tons of claims all over debates like this, that, for instance, Marvel “owns” the name Daredevil, they do not. I even watched an interview the other night with Stan Lee, who admitted openly lifting the name for his character from the Gleason version. In fact, there’s a Golden Age character whose name I am forgetting who LOOKS like Marvel’s Daredevil as well, but is pretty obscure. Of course, that being said, Stan was probably reading quite a few comics in those days, very carefully.

I’m sure Marvel has registered a trademark on the character of Daredevil, no doubt, and this would allow them to pursue a claim in court that Daredevil is their legally protected trademark. However, they’d have to show that the public is likely to be confused if another company markets Daredevil Comics of some type in order to win such a case. Given that Daredevil is a major character, they might be able to do so, or the court might find, citing Dastar, that since there is a public domain, or generic Daredevil super-hero, that even though the public might be confused, the trademark has been sufficiently diluted and Marvel has no protection, despite registering. So, in any case, it has nothing to do with Marvel “owning” a name, but rather, what will happen in the marketplace with two different Daredevils. This may be why Erik Larsen was never sued after using the Gleason character in Savage Dragon and unlike, Dynamite, calling him Daredevil. Using Marvel’s distinct logo or calling your Daredevil Matt Murdock is a different thing.

Recapping Disney and Tarzan, the same concept applies. Disney may in fact, register anything they like, that’s a matter of filling out a few forms. However, the question turns on whether Disney could defend that claim of trademark, and whether Disney knows full well that Tarzan is not a protectable term. Hypothetically, if such a case went to court, it could be found that Disney made a false claim for trademark protection of Tarzan, because he is a PD character, and this is obvious, as he’s so old and has so many sources of origin. This could happen because the court could find that the only reason Disney filed a claim of trademark was to discourage others from using a resource they should have been able to use, and as they acted on the advice of competent attorneys, knowledgeable in their field, Disney would be making a material misrepresentation of facts. On a related note, Sony sued on a claim that they’d “bought the film rights” to Zorro. How you buy film rights to something everyone owns is a mystery, but the purpose of making such a claim is obvious.


Aside from us getting slightly under each other’s fingernails, this is where I’m going with all of this. Intellectual property companies make claims all the time of trademark and register trademarks of tons of stuff, its just a routine they go through. It’s all very safe to do so, mostly, because claims for filing false trademarks almost never come up. When it comes to comic book characters, copyright (and I am clear on the difference with trademark) has expired on many properties which are still rather valuable today. Because of this, talk of trademarks somehow barring these characters from being used or referred to under their proper names is rampant. What I’m trying to point out is that the legal intent of those protections is much less than is believed generally, in my opinion.

I think I hit it on the head using the term “squatter’s rights”. What this loose talk is based on is the idea that since say, Marvel Comics uses Sub-Mariner quite a bit, somehow, they “own” him as a character. Because Namor, the Sub-Mariner was created by Bill Everett at Iger Studios, the original copyright would be either held by Everett or Iger. They even published him in Motion Pictures Funnies Weekly #1, although the published book only went out to a few theater owners. They then sold him to Marvel, who never bothered, probably through forgetfulness, neither renewed either Motion Pictures #1 or Marvel Comics #1, placing Namor in public domain as of 1967, I think. The fact that either Magazine Management or it’s successor company, Marvel, has been the sole publisher of Sub-Mariner Comics for the past 70 years would make for a strong case for trademark, and Marvel, I’m sure has registered such a claim. What Dastar does, in this case, is simply say that you cannot use a claim of trademark, no matter how strong, to stop any member of the public from utilizing a public domain work, specifically Sub-Mariner, or market him as such, simply because, as a company, Marvel has been “squatting” on the character for 70 years. Yes, copyright and trademark are separate, but in certain ways, intertwined.

Now as I think about it, Sub-Mariner may be about as tight as such a claim would ever get, simply because no one else has used him. With a character like Beetle, or Gleason's Daredevil, or the Human Bomb, the case would be over right quick. Most likely, a settlement would be reached long before a courtroom. You familiar with the THUNDER Agents case?

-K

Argosail-

If you believe I’m contributing good, solid, well-though out information here, I’ll continue to do so. If you believe I’m being harsh, I’ll be happy to leave this forum and take my contributions elsewhere. I have my research, and by sharing it, I gain nothing financially.

My opinions are just that, what I believe would be the case in someone were to go ahead and use some of these characters and stories, despite dubious claims made by the companies you spoke about. Comic book history is rife with swipes, re-using, rip-offs of others’ work, misattributions and the like. I’m trying to clear some of these up. My opinions are based on research into intellectual property law and case law, and I will back and reference anything I say.

Bchat took the time to point out that he “didn’t need schooling”, as he does read trademark laws. Well, so do I, and what matters here is what they say, not whether or not one reads them or not. He further took the time to point out that I was sending people to a link “with incorrect and incomplete” information, which is simply not true. Can you imagine why I’d be harsh as a response? What is the purpose of making such statements? It certainly does not forward the case for use of public domain works. It is not a factual refutation of what I said. I can only conclude that the intent was in the hopes that I would back off and go away in shame.

That being said, I understand that people are passionate not only about these characters and the legal ability to use them, but also about the rights of creators involved, and have personal pride invested in what they believe intellectual property law is and is not. I have no stake in what Bchat thinks of me, or his opinions of IP. I present my information, he, you or anyone else either believes it, or they don’t. I do intend to not “mix it up” with him on a personal level any longer, but neither will I fail to respond if I feel comments are directed at my competence, rather than whether stories and characters can be used, and why or why not.

This is not my first time at the rodeo. Crimson Crusader and I got into it over several characters on PDSH, such as Captain Marvel. He finally conceded that, as I said, that Cap is public domain, and included him, but erased entire conversations from the wiki, so I choose not to participate there. Further, I think it is legally dangerous where that wiki makes statements such as “This IS public domain, whereas this other IS NOT”, whereas all this is speculation, unless a legal case states otherwise. What I state here, is what I believe is likely to be the case only. Don Markstein got quite harsh with me on a forum when I pointed out that because Phantom Lady, the Human Bomb and the Ray are public domain, it is impossible that Plastic Man is not, because all first appeared in the exact same magazine, Police Comics #1! Markstein went so far as to call me a thief for “denying that DC owns what it owns”, when it is demonstrable that they do not. Jeff Dee, designer of Villains and Vigilantes, is not a big fan of me either. I pointed out to him that he cannot own the rules to Villains, because copyright law does not allow ownership of game rules, and I quoted the law, chapter and verse! Dee’s response was to threaten to sue me for saying that!

In short, I am unimpressed with who presents an idea, or how loudly they shout that idea. I am very impressed with those who tell me why their ideas are true or why my ideas are false, even if I disagree. When I disagree with your conclusions, I will respectfully disagree. When one disagrees with my character, I do take issue.

That being said, I always prefer peace.

K

Kevin - I'm done talking with you (after this post). I'd go into detail, but based on your comments aimed towards me throughout this thread, why bother?

Bchat

You can be done with talking to me…or not, that’s up to you. The only comments “aimed” at you, as you say, were in direct response to things you said aimed at me, such as my offering “inaccurate and incomplete information” or that “you don’t need to be schooled” by hearing an opinion different from your own. If you want to take your ball and go home, so be it.

I do not post here to “debate”. I post here to offer clarification regarding the public domain status of various characters, and to correct what I read elsewhere, claims made by people that, in my opinion, simply did not do the research.

In my earlier post, I specifically said I wanted an end to the personal attacks. There are things I believe you to be wrong about, and still do. I have taken the time to explain why I believe you are wrong, in detail, using factual information with both case and statutory law. If you choose to do the same in regards to what I believe, that I can certainly respect. Accusatory language, that I have a more difficult time with.

If you are offended by the opinion itself, that I also cannot help you with. Certainly others disagree with me. Take the ownership of Ted Kord, the Blue Beetle. You can do a Google search and find 100 resources to tell you the DC Comics owns Ted Kord. Looking directly at a copy of Captain Atom #83, I can tell you that the copyright notice reads “International Copyright Secured 1966.” That is not a correct copyright notice, which would be “Copyright Charlton Comics 1966”, or some variation. This means, simply, Ted Kord is public domain. DC Comics “buying “ him from Charlton, DC trademarking his name, etc, etc, etc are ALL irrelevant, because he IS public domain. If that offends you, show me to be wrong. THAT I will listen to.

-K