B&N Week 66: Trademarks

| March 27, 2012 | 5 Comments

It’s yet another Tuesday. Aren’t you ready for another heaping helping of Bolts & Nuts?

After last week’s talk of Copyright, it would only be fair if we also talked about the brother of Copyright, the Trademark. And just like last week, this is confined solely to the United States. All of my friends and readers outside of the US will have to do research specific to your country. We all on the same page? Good.

A trademark covers any sort of identifying name, phrase, or logo associated with a product or service. Trademarks are all around us: The Apple logo, the Nike swoosh, Toyota’s “Oh, What A Feeling” saying, as well as brand names like Coca-Cola, Mountain Dew, Chevy Malibu. You can’t go ten feet without looking at a trademark of one type or another. ComixTribe is a trademark, as is Bolts & Nuts. If I consistently said a single phrase about Tuesday that was identified with me and this column, that would be a trademark, too.

Consider “I’m the best there is at what I do.” Of course, that’s the saying of Wolverine, who has several trademarks about him: his name, his distinctive look, and the font of the logo on his comic. His saying could be a trademark, as well. It just depends on if Marvel wants to claim it or not.

Trademarks have something special about them that copyrights don’t. Trademarks have to be defended, or else they could be considered generic, and thus, lose their power. This is the reason that companies such as Disney and Lucasfilm [George Lucas] seem so sue-happy.

Consider for a moment if Lucasfilm didn’t aggressively defend the trademark of the word “jedi.” Yes, the word has made its way into popular culture, and even a religion has sprung up around the concept, but if you were to go and create a character and call it a jedi, then you would feel the wrath of George’s lawyers. If he didn’t, the word “jedi” would lose all power, and he’d lose a ton of money over it. You trademark things to protect it, or else there’s no use in going through the hassle of making something.

Trademarks are powerful, and they can essentially last forever. In order to get that longevity, though, you have to first register the mark.

The mark can be registered at the United States Patent and Trademark Office. [Note, this is not a requirement if you want to just claim a mark. If you feel your mark is being infringed upon and want to sue the infringer, then registering the mark makes it easier to sue and win.] Follow the steps, pay the fee, and if it is accepted, then you’ll own the mark for 10 years. After that, you must renew the mark by simply showing that the mark is still in use by providing examples of it being used on a class of products.

(Class of products? I’m not getting that.)

Okay, let’s go back to Wolverine. Marvel can use him in one class, such as publishing, and in another class, such as mercantiles. So, you can have Wolverine lunch boxes and blankets and such. Different classes of marks for the different ways Wolvie is being used. [Publishing and mercantiles are really broad senses of the word “class.” I just want you to get the gist of what I’m talking about.]

Now, I want you to realize that wolverine, as a word, is generic, and cannot be trademarked. However, the distinctive font [to include the colors] of the Wolverine logo is non-generic, and as such, can be trademarked.

In order to claim trademark on something, you do it much like you do with copyright: you put the letters “TM” next to whatever it is you’re claiming trademark on. For this column, it would be Bolts & Nuts ™. If I were to have the mark registered, it would have the letter R in a small circle, ®, and would look like this: Bolts & Nuts ™ ®.

Okay, let’s start to put this together.

You’ve created Pen-Man, and his entire universe. You’ve got a distinctive logo for the comic, and you also want to branch out into merchandise such as water bottles, shot glasses, pens, and the like. However, you don’t have money to yet do the registering. That’s fine. You’ve got the concepts, they are in a fixed form, and they are distinctive. So, in the minutia of your first issue, you put that Pen-Man is © and ™ of Kletus Jerkovitch.

Once you get the money, you can then register the copyright and trademarks if you wish, and the minutia should reflect that. Now, if someone wants to create their own comic using the name Pen-Man or some derivative thereof, they wouldn’t be able to do so without you suing them.

Now, if someone went and created a Pen-Man comic without your knowledge and authorization, you’d HAVE to sue them as soon as you found out about it in order to keep your trademark. If you don’t sue, then you’re not defending the mark, and then you’d lose it. That means you’d be unable to make the most amount of money from your idea, which is part of the reason you created Pen-Man to begin with.

Now you know why Marvel sometimes trots out characters that haven’t been seen in a while. They show up in a panel, or their name is mentioned, and then they send that to the PTO, and their trademark for the character is renewed for another 10 years.

This is why none of the major Marvel/DC characters will ever make it to the public domain. Either Marvel or DC would have to stop publishing comics for 10 years in order for certain characters to fall into the public domain. If that character has a movie/animated feature or recent cartoon appearance, then they’re considered major [even if they’re a c-list character], and as such, you’ll be waiting an extremely long time to see them lapse into the public domain so you can snatch them up. Other characters, such as Spider-Man, Batman, or Superman, you can forget about. The likelihood of those marks going dormant are as high as you finding out you’re pregnant and the child is going to be the brother of the next Messiah. (But that’s–) [Exactly.]

Do you now know everything you need to about trademarks? No. Not even close. Trademark law changes as new cases come up to challenge it. This is why you hire a lawyer to help you navigate this stuff. There is a ton you can do as DIY, but certain things you should leave to professionals. This is one of them.

That’s all I have for this week. See you in seven.

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Category: Bolts & Nuts

About the Author ()

Steven is an editor/writer with such credits as Fallen Justice, the award nominated The Standard, and Bullet Time under his belt, as well as work published by DC Comics. Between he and his wife, there are 10 kids (!), so there is a lot of creativity all around him. Steven is also the editor in chief and co-creator of ComixTribe, whose mission statement is Creators Helping Creators Make Better Comics. If you're looking for editing, contact him at [email protected] for rate inquiries.

Comments (5)

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  1. In Canada, trademark protection and registration works along the same logic as in the US, except that we only have to renew registration every 15 years as opposed to 10 in the US. As for copyright, trademarks fall under the jurisdiction of the Canadian Intellectual Property Office.

    http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/home

    By the way, the Canadian flag is a prohibited mark. You need special permission from the government to use it in a mark of your own. Makes me curious about all of the US-themed superheroes in the States. How does that work? DO you have the same prohibitions?

    • Great question!

      I don’t think so. (Notice the word “think.”)

      Not only superheroes, but there are flags in business logos all over the place here. So, I’m going with “I don’t think so,” based on observation only, not because I’ve done any research for myself.

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