There may be a fictitious crossover planned for Wondercon by Marvel, but this is the real thing. Marvel Characters and DC Comics Vs Sunne Law PC. And this may be one of my favourite stories I’ve ever run.
Since the fifties DC and Marvel have jointly claimed the trademark for SUPER HERO and SUPERHERO in things like comics, games, TV, film, costmes, toys, merchandise, all that. Over the years pretenders to the throne have received cease and desist letters, which lead to things like Malibu’s “ultra heroes”, the change of Super Hero Happy Hour to just Hero Happy Hour and Mark Millar’s Superhero Con to Kapow.
But it’s never really been challenged before and a number of observers think it’s a very weak claim. On trademarks you argue that another party is infringing your use of the trademark, diluting your claim to it and damaging your association with the trademark. But with DC and Marvel jointly owning the name, it has already been diluted. Also the words are considered so generic and used in that fashion, it could be argued that no one can hold a trademark on the use of the words.
Not that Super Hero Lawyers will use that argument. Because it was the attempt by Sunne Law PC of Georgia to trademark the name for their own brand of legal services that caused DC and Marvel to issue a notice of opposition. And the documents for this case have just been released. So while Marvel and DC talk about the length of the trademarks and how the existence of a company trademarking the words for legal services will harm their business making comics, movies and merchandise, Sunne Law basically take the piss. They reply;
Notably, all of Opposers’ marks relate to goods which depict fictional characters who use their fictional superhuman abilities to thwart fictional criminal activities; and, notably, they do so without regard for the Constitutional rights of any of the alleged “criminals” who they “bring to justice” without so much as a miniscule consideration of their presumption of innocence, as such is the way of comic book fiction.
As clearly admitted by Opposers (See, ¶ 4 of the Notice of Opposition), Opposers are
engaged in the publishing business, and their various marks relate to goods associated therewith,
along with the fictional characters depicted in their publications. Applicant, on the other hand,
provides real “legal services” to real clients. Accordingly, any claim that Applicant’s use of its
word mark “Superhero Lawyers” for “legal services” could conceivably be likely to confuse is
incomprehensible. Clearly, no one seeking legal advice would go to Opposers, just as no one
seeking a comic book, a toy figure, a t-shirt, or a masquerade costume would go to Applicant, as
Applicant provides real legal services to real clients. Unlike Opposers, Applicant acts solely
through duly licensed attorneys-at-law.
It is factually and legally absurd for anyone to argue, much less conclude, that there is a
scintilla of likelihood that any real person seeking real legal advice or representation would
confuse Opposers’ goods depicting fictional characters with Applicant’s actual services. It is
also factually and legally absurd for anyone to argue, much less conclude, that there is a scintilla
of likelihood that anyone seeking a comic book, t-shirt, toy figure, or masquerade costume would
show up at Applicant’s law office for any of those goods.
Opposers’ registrations are all for marks relating to goods, whereas Applicant’s
“Superhero Lawyers” mark (“Mark”) is used solely for services rendered by Applicant through
duly licensed attorneys. In fact, even if Opposers wanted to expand the use of their marks to
areas relating to services, they could not do so with respect to “legal services”, as legal services
require licenses based upon education, training, and bar admissions, none of which are possessed
by any of Opposers’ fictional characters
Marvel and DC also point out the similarities between visuals used by Sunne Law and cry foul by basically running a version of Bleeding Cool’s Swipe File.
Sunne Law say this is irrelevant when it comes to infringement of the trademark in question. And moreover…
Applicant affirmatively represents that the dog, “Cooper”, depicted in Exhibit “D” of the Notice of
Opposition is the actual pet Airedale dog belonging to Celia T. Sunne, Esq., a true photo of
which (along with various artist’s renditions) is annexed hereto as Exhibit 3. Accordingly, any
alleged likeness to any other dog, real or fictional, is coincidental, and is, in any event, totally
irrelevant, as the Mark sought to be registered is (once again) the word mark “Superhero
Go! Go! League Of Sarcastic Lawyers!
It’s one thing to send a cease and desist notice from scary lawyers to a barbeque bar with a Bat in its logo. It’s another to go after an actual team of lawyers, with a frankly specious legal argument. And if Sunne Law are successful, which it looks like they should be, will the overall legal strength for the “superhero” trademark lose a supporting column by creating precedents?
Let’s find out!