Superheroes or super-jerks?

Virginia Postrel writes about trouble with her latest column for the Atlantic (free only for the next three days):

There's an interesting intellectual property story behind the column's art. The art director originally wanted to reproduce Savador Larroca's Storm image from the comic book pictured above. But Marvel dragged out the permission process until the day before the issue was supposed to go to the printer. As a condition of permission, the company's lawyer then insisted that the article treat the word superhero as a Marvel/DC trademark, spelling it Super Hero. Fortunately for me, The Atlantic declined and went with Superman.

As is so often the case, aggressive IP lawyers trumped smart business strategy--good fodder for a future Forbes column. Marvel is supposed to be promoting second-line characters, including Storm, and The Atlantic is clearly not trying to publish a superhero comic in competition with the trademark holders.

Postrel links to a pro-trademark-owner discussion of Marvel & DC's claim to jointly own rights in SUPERHEROES, which totally misses the basic trademark rule that no amount of secondary meaning can turn a generic term like superheroes into a trademark. As a commenter astutely points out, the fact that large numbers of people associate a generic term, whether "superhero," "soda," or "search engine," with the market leader does not mean that they perceive the term to be a mark. It just means that the market leader is top-of-mind. To find out whether consumers perceive the term as a mark, you have to go far beyond asking for associations and look at meaning.