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Indy Hunter interviews Ray Felix, the man being sued by Marvel and DC over their dubious trademark of the word "Super Heroes."
Hi Ray. Thanks for taking the time to speak with us. If you don’t mind, tell us a bit about the book you're publishing that’s got the Big-Two Comic book Corporations in a fit. “Superheroes”, right?
The comic that they gotten their panties in a knot about is “A World Without SuperHeroes.” Its a comic that deals with time travel, identity, history and spirituality.
Your world has them?
Yes and no. My heroes aren’t heroic. No one gets saved.
My heroes are military heroes who are advertised to the public as heroes but are in fact not nice people. The main character, who is a homeless veteran, thinks he’s a super hero but really is driven by a secret, selfish motivation to control things by using his time warping ability.
So even in a world without SuperHeroes, the never-ending battle extends itself to the covers of your publication. Two words, Super and Heroes that grace said covers have put your title on the radar of two fairly large comic industry staples. It appears they've set their sights on you. What's going on?
DC and marvel don't want any independent comic company to use the word "Super Hero". More so, they are upset because I registered the title of my book as “Cup o Java Studio Comix A World Without Superheroes”. No hyphen, by the way. Just as one word.
Why do you think that is?
I have a few people asking, did you know about the trademark before you used the word, SuperHeroes? If so, why go forward? You stated in an article, that you felt your case was pretty strong. Can you go into a bit more detail about that please?
Yes, I did know that Marvel and DC trademarked the word “Super Hero”, but they are making claims that they own every variation of the word in every form and language. Trademark laws do not protect variations nor extend that far. Its because trademarks only protect the "literal element". That which is registered, and nothing more. My trade mark is registered as “Cup O Java Studio Comic A World Without SuperHeroes,” which in no means infringes on DC nor Marvel’s registered mark, since I clearly state that these are “Cup O Java Studio Comix”.
Yet, what Marvel and DC are doing is an illegal practice of creating a monopoly over the comic industry and threatening and then pursuing anyone who uses the word “Super Hero”, within their title of a comic or any other form of media, even if its a product that they don't produce, i.e "Super Hero" soft drinks. I had this confirmed with their lawyers. I'm not inventing this. The big 2 will sue you if you have a soda, soft drink, coffee, tea or any other food product using the word "Super Hero". Even if they're trademark doesn't cover that usage in the market. They will find a way to take you to court.
This isn’t a legal tactic. Its simply bullying through endless litigation and using 'might over right'. Technically speaking, in legal terms, the word itself is "public domain" and cannot be trademarked alone as a word. "Super Hero" is a generic term, thus cannot be trademarked. What determines that a word is generic? If its published in a dictionary.
Marvel should have trademarked “Marvel Super Heroes” and DC “DC Superheroes”, but they did not. Thus, they are again breaking the law and our legal system has failed to act in checks and balances of our trademark law. The system is corrupt by allowing Marvel and DC to continue going after anyone who wants to use the word Super Hero on a comic book cover.
The Most Dangerous Man in Comics, aka Hart D. Fisher, says he’s willing to come to your defense, speak on your behalf, in court even, or to your lawyer. What do you make of that?
I’d love to meet him.
Some are also asking if this was a publicity stunt to get more exposure for your book. While that seems kind of unfair, because who isn’t trying to get eyes on their property, a better question I think… is how do you handle the fallout from something like this? What do you gain or lose from something like this?
If that was the case, I'd have the book selling through Diamond distributors and not my website. I don't do Diamond because of their quota for indie publishers to sell 2,500 minimum to stores or else they won't distribute your book. But that's a whole other ball of wax. That's not the main issue.
I’ve been working on this title for 20 years, since college in 1993. I began the artwork for the project in 1995 and completed it in 1995. I didn’t publish it because we didn’t have Photoshop at the level it is today, and we didn’t have print on demand in those days. So I worked on other projects until the technology and my art skills improved.
In 2005, I started the project again and started to draw new issues that would fill in the gaps of the previous plot. That’s not me trying to get some sales, that’s me committing myself to a vision.
I’ve had relationships and friendships come and go, but this book kept me sane throughout the years. It deserves to be published and to be protected under our legal system. Also, what most interviewers have not mentioned is that my book was copyrighted since 1995, which Marvel and DC’s lawyers are also trying to repel. Not just my recent registered mark.
What do you say to those that argue that both Marvel/DC have a right to protect their brand?
Yes and no. They do have a right to protect their brand which is Iron Man, Spider-Man, Batman and Superman, according to the court documents. Not one of those titles include the word super hero, nor are they dependent on the word to make sales. In fact, there isn’t a comic called “Super Heroes” which is a monthly series, so it is plain to see that the two companies are holding it hostage without any real reasons beyond keeping other companies from using it.
I’d say that most people are ignorant of the rules and laws which govern this land and couldn’t even begin to describe the difference between a copyright and a registered mark. There is a vast difference. I can only encourage them to get informed. Knowledge is power, is it not?
Do you think they’re dismissive because, in some people’s eyes, we as Indie creators/publishers are a lesser known brand?
I think Marvel and DC are coming at me in overkill mode. I was charged with 16 infringements of trademark when I only registered for one, which, in their eyes, conflicts. That would be comics. I don’t sell video games, costumes, toys or food products with the term “Super Heroes”, but they threw the kitchen sink at me anyway.
Bottom line, every lawyer that knows and understands trademark law knows, I am within my legal rights to own my registered mark, but I do not “have the cost to be the boss” as B.B King would say. They have more money so they have the power to win. Period. Rich vs struggling middle class.
If you were in a bar sitting next to one of these vocal-4-the Big 2, and they said, “Go ahead, convince me, I’m gonna keep an open mind here…”, how do you appeal to their sensitivities. How do we, as independent creators, really illustrate what it means for two words that basically classify a whole genre for the medium to be isolated to just 2 corporations?
I shouldn’t have to. It isn’t any fault of mine that they don’t understand laws in a country they were born in. It is also not my responsibility to justify my legal rights as an American to someone who writes or draws comics because they’ve placed themselves on a pedestal. I would advise them to read more, be informed and not pass judgement on others when they have no knowledge of a subject they have no basis to defend from.
Let’s flip this. What does it mean to them, the consumers, if only two companies in town own the genre category name?
It is essentially a loss of freedom of expression and freedom to utilize the English language in order to sell, market and distribute a product. It also prevents them from protecting their creative works under the term, genre or category of “Super Hero”.
The big two are not just defending the word superhero. It is also countless cases suing companies over generic terms like, ”Omega”, “Thor” “Super Villain”, “Super Heroine”, Super Human”, “Superior”, “ Super Soldier”, “Winter Soldier”, “Meta”, “Mutant” and so on. “Winter Soldiers” were real soldiers in Korea and Vietnam that protested those wars. Marvel did not invent the word, but they sure as hell trademarked it.
Hundreds of cases are in USPTO court. Why? Because they can afford it.
Corporations beyond “the big 2” are doing this. Disney, for instance, sues other companies for using “Snow White”, “The Little Mermaid,” “Sleeping Beauty” and all other public domain stories which were by the Brothers Grimm, not Walt Disney. Corporations are trademarking our language and don’t think its just in English. It’s in every dialect they’ve made claims to owning the word “Super Hero”. I kid you not. Do your research and discover the truth for yourself.
Some might argue, "why not just change the name? It’s the story inside that matters. There are plenty of other descriptive names for super-powered beings to use?”
Because if we keep laying down for the little things, then we’ll eventually lay down for the bigger things as well. We have to stand up and fight like Heroes and be Heroes, not just read about them. We are losing our humanity and our personal power as a species, and we give it away bit by bit. If you can control the usage of words, language and expression, you essentially can control the mind.
The most revolutionary corporate trick is for you to click ”I Agree”. Try reading what you are agreeing to sometime and see how many of your legal rights you are giving away to each corporation and downloadable product on the internet. We are becoming powerless and losing our freedoms to men in suits, not terrorists from the other side of the globe.
A lot of teens and twenty somethings will think that I sound crazy, but that’s because they don’t know or understand what personal power is. They’ve never experienced it, and its foreign to them. Many of them have never seen their own near death in a fight, or been wronged by the legal system, or even lived outside of their families and independent.
I tell my high school students that, when I was 15, I had two jobs and lived independently, renting my own house at the age of 18. Most of them think it’s insane that I traveled to other states within our own country and outside of the United States. It’s like a fantastic dream to them. They're so busy watching reality television that they’ve lost focus on living their own lives. Stan says it best, “Nuff said”.
If this ends up not going your way and you are forced to remove the words, what will you do?
DC and Marvel cannot force me by any means to stop using my title. That would fall under harassment and then it would become a civil case. They can only win by repealing the USPTO’s decision in approving my trademark and the USPTO will not recognize it as being a registered mark.
Petitions are all the rage these days, from Deathstars…(which I suppose Disney now owns too), to legal justice for victims. Would you sign a petition for a new description of the genre formerly known as super heroes so that there’s a neutrality allowing all creators and people to use it without fear of legal recrimination?
I think any independent publisher or comic creator who has been warned ,threatened or taken to court by Kenyon and Kenyon (DC and Marvel’s lawyers) and have a pair of balls, willing to stand up against the big two, will get my support. We need to find each other and form a class action suit against "the big 2". More importantly, we should get companies like Image Comics and Dark Horse to stand up against the monopoly of DC and Marvel and repeal their trademark over a generic term, “Super Hero(es)”. It’s public domain and should remain that way.
Ray Felix…where do you go from here? Win or lose, what can people expect to see from you? Anything you’d like to share or plug?
I will continue to publish “A World Without Superheroes” until its conclusion of issue 13, and I will also continue to publish my other titles: “Bronx Heroes: Runaway Slave ”, “Bronx Heroes 2.0” and “The Adventures of Baron Ambrosia.” Also, if you live in the New York or Tri-State area, you can check out my tribute to Bronx artists Will Eisner, Bob Kane, Bill Finger, Jerry Robinson and many more at the “Living in Sequence” comic gallery show at Poe Park in the Bronx and “Bronx Heroes Comic Con 5” this May 4th and 5th. You can follow us at http://www.bxhcc.com and www.aworldwithoutsuperheroes.com.
Thanks Ray for taking the time, and good luck moving forward, PROGRESSING!
Thanks man, let me know if you need anything else or have concerns. I need a pro bono lawyer willing to take on this case. God Bless.
And thar she blows, stay tuned for any updates and a follow up discussion on the subject of trademark ownership of the words Super-Heroes, etc. by various independent creators and other people who have agreed to discuss the controversial subject. You can of course join in on this topic or start the discussion in the comment sections below on the forum or the facebook comments so your mom and dad can see how you spend your time. Till' then, enjoy my happy little face below and thanks for reading!
Victorian Squid wrote:There is rampant misinformation in this article. Just for starters, Marvel & DC jointly own the trademark for "SUPER HEROES" (see link), and no, adding hyphens (or not) is almost certainly not going to get you around using variations of that in a title for so long as they do.
http://tsdr.uspto.gov/#caseNumber=78356 ... atusSearch
J.M. Hunter wrote:
Jointly own the trademark hence the reference to "The Big Two". What part of that did you not get?
Hyphen, or no hyphens, that all is apart of the dispute. The trademark is being challenge on multiple levels. Read my Hart Fisher interview for more info.
Also there is a 3rd part to this topic in which we discuss the variations of the words with hyphens or not with a trademark lawyer.
So no offense but do more research and reading before you start telling me my article is full of misinformation. Thanks.
draco x wrote:Was Marvel and DC high on crack when they came out with this idiotic idea of holding a copyright on the term super-heroes? This has got to be the stupidest idea the Big 2 ever came out with-and I'm surprised there was a court that didn't laugh that case out of the court room and granted their moronic request. I don't believe Marvel or DC should hold a copy right on this term in the least.
S.F. Jude Terror wrote:My fault as editor. It's possible Felix didn't even say Super-Heroes - Microsoft Word may have corrected to that before Hunter sent me the article. Regardless, it's been corrected to Super Hero and Super Heroes.
Victorian Squid wrote:Hunter, you say in your opening "Marvel and DC trademarked Super-Heroes"--that's a QUOTE, you dumb ass--and I posted a link to show that Marvel and DC in fact own the trademark for "SUPER HERO" and "SUPER HEROES".
Again, you later have "Yes, I did know that Marvel and DC trademarked the word “Super-Hero”.
Again, as my link shows, you're wrong. They trademarked "SUPER HERO" and "SUPER HEROES".
http://tsdr.uspto.gov/#caseNumber=78356 ... atusSearch
So yeah! That's rampant misinformation! Get YOUR facts straight!
Now anyone trying to put a variation like "superheroes" in their title of a similar product and gets attention of Marvel/DC, they're still going to be violating that trademark.
Whether someone can get that trademark declared too generic and dissolved is another matter entirely, but adding or subtracting hyphens ain't gonna do it.
And don't be an asshole next time.
Victorian Squid wrote:
And thanks for not being a compete fuckwit about it.
Victorian Squid wrote:And, the article is still full of inaccuracies and misinformation.
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