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Set our Super Heroes(trademark symbol) free

March 26, 2006

TICKETS TO THE California Science Center's latest exhibit, "Marvel Super Heroes Science Exhibition," sell for $6.75 and up. But there's one lesson the exhibition offers free of charge to anyone who wanders by the museum, and it's not about science.

The lesson is in the giant sign looming over the center's entrance archway: "Marvel ® Super Heroes(TM) Science Exhibition." The "TM" stands for trademark, signifying that Marvel is claiming exclusive rights to use the term "super hero" as a marketing term for, well, superheroes. The company and its largest competitor, DC Comics, jointly obtained the trademark from the federal Patent and Trademark Office in 1981.

The government's action means that any company wishing to market a comic book, graphic novel or related item with any variation of "super hero" in the name or title must get permission from Marvel and DC. Dan Taylor, the Costa Mesa-based creator of the "Super Hero Happy Hour" comic, learned about this absurdity two years ago when he was contacted by lawyers for Marvel and DC, prompting him to rename his series to the more pedestrian "Hero Happy Hour."

The notion of superheroes goes back at least to 1938, when Superman made his debut in Action Comics. The term's first commercial use, the trademark holders say, was in 1966. Still, it's hard to think of "super hero" as anything more than a description of the entire category of characters, not a particular brand. As a familiar DC series so aptly puts it, there is an entire legion of superheroes, and their ranks extend far beyond the rosters created by those two companies.

In trademark law, the more unusual a term, the more it qualifies for protection. We would have no quarrel with Marvel and DC had they called their superheroes "actosapiens," then trademarked that. But purely generic terms aren't entitled to protection, at least in theory. The reason is simple: Trademarks restrict speech, and to put widely used terms under private control is an assault on our language.

Once a trademark is granted, it remains in effect until someone proves to the feds that the term has lost its association with a specific brand, as happened with "cellophane" and "linoleum." That's why Johnson & Johnson sells "Band-Aid brand adhesive bandages," not simply Band-Aids(TM).

Videogame developer Sega recently sought a trademark for its "Gunstar Super Heroes" software; lawyers for DC and Marvel responded by asserting their trademark, starting a new round of negotiations over the term. With any luck, the two sides will face off in Washington and "super hero" will be liberated from DC and Marvel's clutches. After all, the great power of a trademark comes with great responsibility.

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