The U.S. Patent and Trademark Office (USPTO) has canceled long-standing trademark registrations for “Super Hero” and “Super Heroes,” which had been previously jointly owned by Marvel and DC Comics.
The cancellations resulted from a petition filed by Superbabies Limited, a company producing comics about superhero babies. Superbabies initiated the cancellation action after DC Comics attempted to block the promotion of Superbabies’ series, “The Super Babies.”
Superbabies raised several arguments in its petition for cancellation. Chief among its arguments was that the phrases were generic, referring to a genre and character archetype rather than a specific brand. Superbabies supported this argument with historical evidence showing widespread usage in media and third-party products.
Superbabies also asserted that the joint ownership of the registrations by competitor constituted abandonment of any rights they could asset in the phrases: since both companies were entitled to use the phrases, the phrases could not function as trademarks because the use would not serve as an exclusive indicator of origin.
When Marvel and DC Comics failed to respond to the petition for cancellation, Superbabies moved for default judgment. Marvel and DC Comics also did not respond to Superbabies’ motion, and the Trademark Trial and Appeal Board granted default judgment and ordered cancelation of the “Super Hero” and “Super Heroes” registrations.
While Marvel and DC Comics continue to jointly own several more trademark registrations, and independently own a number of “super” formulative marks, these cancellations still represent significant loss of rights in registrations that had existed for decades.
