In a striking development, Marvel Characters, Inc. and DC Comics have lost their trademark registrations for “SUPER HEROES” and “SUPER HERO” through a default judgment issued by the Trademark Trial and Appeal Board (TTAB) on September 26, 2024.
The Historical Journey of “Super Hero”
The path to this moment began not with Marvel or DC, but with Ben Cooper, Inc., a Halloween costume manufacturer who first registered “Super Hero” as a trademark in 1967. When toy giant Mego Corporation attempted to register “World’s Greatest Superheroes” in 1972, Ben Cooper opposed the application. The subsequent legal maneuvering led to a surprising outcome. Ben Cooper withdrew its opposition in exchange for transferring the trademark rights to Marvel and DC in the late 1970s.
This transfer coincided with a pivotal moment in comic book history. Both publishers, facing declining comic sales, had shifted their focus to licensing intellectual property. By 1979, Marvel and DC had secured joint control over the “Super Hero” trademark and began expanding their rights to related terms across multiple categories, an unusual collaboration between fierce rivals that would last for decades.
The Current Case
The case that ended this long-standing arrangement began when Superbabies Limited, a UK-based children’s comic book publisher, filed a petition to cancel Marvel and DC’s joint trademark registrations. The petition argued that “super hero” is a generic term describing a character type and genre, not a specific brand, and that competitors like Marvel and DC cannot jointly own a trademark meant to identify a single source of goods.
What’s particularly remarkable about this case is how it ended. Despite having legal representation, Marvel and DC failed to file an answer to the petition by the July 24, 2024 deadline. When Superbabies filed for default judgment on August 9, the motion went uncontested. The TTAB subsequently granted the default judgment, ordering the cancellation of all four trademark registrations.
The implications of this decision are significant. For decades, Marvel and DC jointly wielded these trademark registrations to control the commercial use of “super hero” and its variants in comics, toys, t-shirts and costumes. Their failure to defend these registrations effectively releases these terms into the public domain for commercial use.
Superbabies’ original petition had presented extensive evidence showing the generic nature of the terms, including dictionary definitions, widespread industry use and even Marvel and DC’s own generic usage in their publications. The petition also highlighted statements from industry leaders like Stan Lee and current Marvel Executive Editor Tom Brevoort describing “super hero” as a genre rather than a brand identifier.
However, because the case was decided on default rather than merits, these substantive arguments were never adjudicated. This leaves open the possibility that Marvel and DC could attempt to establish new trademark rights in the future, though such an effort would likely face significant challenges given the extensive evidence of generic use compiled in Superbabies’ petition.
This decision marks a significant shift in the comic book industry landscape, potentially opening doors for smaller publishers and creators to more freely use “super hero” terminology in their marketing and branding. The industry will be watching closely to see how Marvel and DC adapt to this new reality, and whether other publishers will take advantage of the newly available terminology.