Friday, March 31, 2006

For Pete (Ross)'s sake

I've seen several posts like this one defending DC & Marvel's shared trademark on SUPERHERO for comic books and related goods. The primary defense involves secondary meaning: when people think "superhero," they think Marvel and DC. (Query whether Marvel & DC really exercise joint control over the mark, or whether each independently decides which caped crusader to introduce next; but set that aside.)

But secondary meaning is irrelevant to protection of a generic term: a monopolist (or here, oligopolist) may be identified with a generic term because it's the sole or biggest seller, but that doesn't prohibit others from using the term in commerce to identify their goods to the public. When I say "soda," you think "Coke and Pepsi" because their products come most readily to mind, but that doesn't mean the two of them could assert trademark rights to the generic term soda.

One popular formation of the generic/brand divide is that a generic term answers the question "What am I?" while a brand answers the question "Who am I?" Do any Image Comics feature superheroes? If you think so, then you have your answer to Marvel and DC's claims.

(Pete Ross.)

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