WHAT THE????????? BLACK TERROR - trade marked in 2009 for comics????

[Janus of Latium]

Word Mark  BLACK TERROR
Goods and Services IC 016. US 002 005 022 023 029 037 038 050. G & S: comic books; graphic novels; comic magazines; posters. FIRST USE: 20071100. FIRST USE IN COMMERCE: 20071100
Standard Characters Claimed 
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 77201756
Filing Date June 8, 2007
Current Filing Basis 1A
Original Filing Basis 1B
Published for Opposition November 20, 2007
Registration Number 3669916
Registration Date August 18, 2009
Owner (REGISTRANT) Super Power Heroes, LLC LIMITED LIABILITY COMPANY DELAWARE P. O. Box 2207 Wilmington DELAWARE 19899
Attorney of Record Michael L. Lovitz, Esq.
Type of Mark TRADEMARK
Register PRINCIPAL
Live/Dead Indicator LIVE

Talk about STEALING from the public domain....how much more of this is going on???

[Janus of Latium]

Michael L. Lovitz, Esq.
Connolly Bove Lodge & Hutz LLP, Los Angeles, CA

Mr. Lovitz is a partner in the intellectual property group of the Delaware office of Connolly Bove Lodge & Hutz LLP. His practice focuses on trademark, copyright, unfair competition, trade secret matters, as well as on license agreements, including software and internet-related agreements, litigation and entertainment law. Prior to joining CBL&H, he was an associate at Akin Gump Strauss Hauer & Feld LLP, Panitch Schwarze Jacobs & Nadel, P.C., and Ferrill and Logan. Mr. Lovitz was also vice-president and general counsel of REMCO Worldservice Books and Slumberland Products, Inc. and founded and co-owned Ivory Tower/Amazing Comics. He has been an instructor and lecturer at various seminars, conventions and conferences on trademark, copyright, Internet, computer and entertainment law issues sponsored by the Pennsylvania Bar Association, the American Intellectual Property Law Association, the Pennsylvania Bar Institute (PBI), ALI-ABA, the Philadelphia Volunteer Lawyers for the Arts, and the Philadelphia Association of Paralegals. Mr. Lovitz has also established the “Comic Book Law School” series, an extremely popular series of seminars given each year in San Diego at Pro Con and at ComicCon International (San Diego). In addition, he is the author of numerous articles on trademark and copyright law, including “The Implications of Hyperlaw for Secondary Publishers,” published in the Newsletter of the National Federation of Abstracting and Information Services (February 1998), “Cat and Mouse: Josie & the Pussycats Creator Challenges Copyright Ownership,” published in the Philadelphia Lawyer (Summer 2001), “Surfing Near the Edge: Fair Use in Cyberspace,” published in the Philadelphia Lawyer (Summer 2002), “The Struggle for Captain America,” published in the Philadelphia Lawyer (Summer 2003), as well as The Trademark and Copyright Book by Sirius Entertainment (2001). Mr. Lovitz is a member of the Philadelphia, Pennsylvania and American Bar Associations, the Licensing Executives Society, and the International Trademark Association, and is the immediate past co-chair of the board of directors of the National Lesbian and Gay Law Association. He received his B.A. in astrophysics and English in 1986 from the University of Pennsylvania and his J.D. in 1989 from the Temple University School of Law. 

So by trade marking public domain characters names, are creators prevented from using the title of the characters and we are only allowed to see the comic that is no longer comic righted...this does not seem fair...

[Janus of Latium]

Is this Stealing from the Public Domain??? Can someone comment?

[Ed Love]

As far as I can tell what they are referring to, it's perfectly legal. This is what Marvel did long ago with "Captain Marvel" and "Daredevil" after all. Likewise, Bill Black has tried to assert trademark ownership of various public domain characters. Just as Dynamite has the right to copyright their SUPERPOWERS books with the public domain characters. It's part of the reason why some of the characters had their names changed and their looks tweaked, to give them a stronger hold on their versions of the characters. From the beginning, Dynamite obviously thought the GA Daredevil had a strong enough visual and appeal to warrant his own mini, but they couldn't do one titled "Daredevil" as Marvel now owns that trademark as it pertains to a superhero comicbook title. Didn't stop Erik Larsen from riding on their success somewhat and also introduce his take on the GA Daredevil in SAVAGE DRAGON. But, as he has no plans on spinning the character off in his own book, he kept the name.

Keep in mind, what the Trademark refers to is titling a book "Black Terror" and the distinctive likeness on the cover and advertising. It doesn't really affect the character or insides of a book. It also cannot prevent the use of artwork already in the public domain (thus Bill Black could still show the Black Terror on the cover of his reprint books as long as he just uses public domain artwork). Considering, the efforts that Dynamite has made to change the visual of the Black Terror, you are probably still safe anyways as long as you stay closer to the classic look or make changes in other directions. Trademarks also have to be used, thus just filing a trademark doesn't do any good if nothing is actually done with it.

If you want to do a superhero team with the Black Terror as a character, you are still well within your rights to. I'd be more worried that the company that actually does own some of the Nedor copyrights might realize it as some of them apparently were renewed and the company might just well be DC.

[JVJ]

Is this Stealing from the Public Domain??? Can someone comment?

Like Ed says, norrin,
It's very analagous to the "reinvention" of Daredevil and Capt. Marvel. It's not "stealing" from the Public Domain, but rather mining it for material. It's not like Black Terror or Green Lama had been regularly used in comics during the last 60 years, so they couldn't "steal" if from anyone. The Public Domain is a RESOURCE for all to use. YOU were welcome to create a character with either of those names, come up with a logo, and trademark both the character design and the logo. You didn't and Bill Black did. C'est la vie. The attempt to establish some "recognition factor" is what trademark is all about. Basing a new product on an old one is a very traditional approach - Henry Luce bought the old humor Life Magazine

because he wanted to use the name Life for his photo mag. The LOGO and the design he trademarked were very different from the old one.

(You trademark logos and designs and you copyright the product you produce.) Unlike Luce, Bill Black opted for a new logo but a character design very similar to the character from the 1940s. He's allowed to do this since nobody else was using it. I'm wondering why this is a problem for anybody. I don't recall ANYONE being much up in arms in the 1970s when Captain Marvel was reinvented JUST to trademark the name and the character - and he'd only been unused for maybe 15 years. You have to USE your trademark to maintain it. I think that when Black stops using Green Lama, the comics that Black produced will still be under copyright, but the character will be still available for YOUR interpretation of it.

my 2¢

Peace, Jim (|:{>

[Janus of Latium]

Thanks Jim, I think anyone can still use the original black terror character, however, no one can now use the black terror as a trademark to sell there black terror products. Only bill black can do that now.

Once the trademark expires, if he chooses not to renew it, and he can renew it (or his company) forever now. Then that is his option. The copyright on the new black terror comics will go through the copyright cycle and be protected for i guess 95 years...

is that about right?

thanks

norrin

[JVJ]

Something like that, norrin.
I must be honest and confess that I don't pay much attention to the modern copyright rules/laws. I'm most interested in those that apply to artwork published in the 1920s and earlier. About eight years ago, I started publishing a magazine that reprinted old illustration art and did a LOT of research into copyright at that time. To my dismay I discovered that the laws kept (and keep, damn it) changing and that the only thing I could be certain was in the PD was material published 1922 or earlier. So that's my main focus of both law and material. I love old comics, and was collecting modern comics until 2005 when the scope and volume simply overwhelmed my finances and the approach and tenor of the storytelling finally underwhelmed me.

My artistic appreciation (ie, my collection) covers the last 150 years with focuses on the 1890-1920 and 1935-1955 eras. The former feeds my magazine content and the latter feeds GAC. John C. seems MUCH more attuned to how the laws work regarding trademarks and he may give you a more definitive answer on how Black's trademark of Black Terror will likely play out in the future.

Peace, Jim (|:{>

[John C]

Thanks Jim, I think anyone can still use the original black terror character, however, no one can now use the black terror as a trademark to sell there black terror products. Only bill black can do that now.
Once the trademark expires, if he chooses not to renew it, and he can renew it (or his company) forever now. Then that is his option. The copyright on the new black terror comics will go through the copyright cycle and be protected for i guess 95 years...
is that about right?

No.  That doesn't resemble the law at all.

First, the trademark is ONLY a "mark in trade," a brand.  Anybody can use public domain content regardless of trademarks, but you can't infringe on a brand because that's a fraudulent act.  For example, if I advertise that my comic book features "Superman"--even if it's not the DC character--DC can sue me for misleading the consumer into thinking my comic is related to theirs.

However, as long as it's not part of the "trade dress" (anything used for marketing and advertising), I actually CAN have a character named "Superman," and there's nothing DC can do to stop me.

With me so far?

Now, here's where it gets weird.  There are two kinds of trademarks, registered trademarks and (no adjective) trademarks.

A registered trademark needs to be (duh) filed with and approved by the Trademark Office (in the United States, a division of the Patent Office).  It has a term length, after which it expires and can be renewed.  That's the circled-R symbol.

An unregistered trademark is just an identifying feature of your work, which consumers identify with you.  "Steve Rogers" is a trademark of Marvel Comics, though not registered.  These trademarks operate as long as they're being used, which is why Marvel brings back the Captain Marvel trademark every few years whether anybody cares about the character or not.

And both trademarks are considered "abandoned" when there's market confusion, which is why you so often hear about Disney suing small bakeries or painters.  If they sue, say, a pornographer selling "Minnie Makes Minneapolis," Disney loses the case if the defendant can find examples where other people were allowed to sell unauthorized Minnie Mouse products, because they haven't protected their trademark.

In the Black Terror case, I don't know (or, honestly, much care) if Bill Black HAD a Black Terror trademark.  But unless it's active and he's been the only source for Black Terror content, then anybody could trademark the name (even registering it) and do what they want with it instead, in terms of their "trade dress."

Notice, by the way, that the trademark has nothing to do with the character itself or the stories told, and doesn't affect the use of the trademark anywhere other than the "public face" of the work.

[narfstar]

First, the trademark is ONLY a "mark in trade," a brand.  Anybody can use public domain content regardless of trademarks, but you can't infringe on a brand because that's a fraudulent act.  For example, if I advertise that my comic book features "Superman"--even if it's not the DC character--DC can sue me for misleading the consumer into thinking my comic is related to theirs.

However, as long as it's not part of the "trade dress" (anything used for marketing and advertising), I actually CAN have a character named "Superman," and there's nothing DC can do to stop me.


Now, here's where it gets weird.  There are two kinds of trademarks, registered trademarks and (no adjective) trademarks.

A registered trademark needs to be (duh) filed with and approved by the Trademark Office (in the United States, a division of the Patent Office).  It has a term length, after which it expires and can be renewed.  That's the circled-R symbol.

An unregistered trademark is just an identifying feature of your work, which consumers identify with you.  "Steve Rogers" is a trademark of Marvel Comics, though not registered.  These trademarks operate as long as they're being used, which is why Marvel brings back the Captain Marvel trademark every few years whether anybody cares about the character or not.

And both trademarks are considered "abandoned" when there's market confusion, which is why you so often hear about Disney suing small bakeries or painters.  If they sue, say, a pornographer selling "Minnie Makes Minneapolis," Disney loses the case if the defendant can find examples where other people were allowed to sell unauthorized Minnie Mouse products, because they haven't protected their trademark.

In the Black Terror case, I don't know (or, honestly, much care) if Bill Black HAD a Black Terror trademark.  But unless it's active and he's been the only source for Black Terror content, then anybody could trademark the name (even registering it) and do what they want with it instead, in terms of their "trade dress."

Notice, by the way, that the trademark has nothing to do with the character itself or the stories told, and doesn't affect the use of the trademark anywhere other than the "public face" of the work.

So we could do a "Mighty Samson" or Kona web comic onsite using the GK character. If it was not defended then it would be considered abandoned even if the characters stories are not PD?

[bakerman3]

I think there's a lot of confusion here and also a lot of half-true info being given, unfortunately.  There's also been a mixing of the terms "copyright" and "trademark."

First, trademarks don't really become "public domain" in the sense that copyrights do.  They are either "active" / "in use" or they are "abandoned."  If they are abandoned, the name is ok to use by anyone else.

Second, there is NO difference between a registered trademark and a non-registered trademark in terms of "expiration" as implied by the post above.  A trademark can't and does not have to be "renewed."  As long as it's being used (active/in use), it's valid.  Copyrights have expiration dates, but trademarks exist forever as long as you use them forever.

This means that Disney may eventually lose the copyright to Mickey Mouse CARTOONS, but will still have the trademark to the Mickey Mouse NAME forever.  This means you can put the public domain cartoons on DVD and sell them, but you aren't allowed to create new Mickey Mouse merchandise like, say, your own version of the Mickey Mouse watch.  However, once the copyrights expire on the cartoons, you will be able to create new cartoons using the characters that are in the expired cartoons.  But you won't be able to use characters that are in Mickey cartoons that have not expired yet.

As far as Black Terror is concerned, the stories are public domain and will always be so because the copyrights expired after 28 years and were never renewed.

However, the trademarked name of the Golden Age character was abandoned after non-use a few years after Nedor stopped using it.  This meant that ANYONE could have created a character called "Black Terror," and therefore trademarked the name, but would have had to wait until the 28 years were up before the Golden Age Black Terror stories fell into the public domain so that the "Black Terror" name could once again be applied to the Golden Age Black Terror character on the cover title of a comic series.

As far as just anyone creating a character named "Superman," I really do think that DC could do a lot to stop it, actually.  If it were a one-off thing, they might not bother or just issue a letter, but if it turned into an ongoing character inside a comic or story, DC would take legal action.  Even if they eventually lost, it would still be worth it to them to get an injunction pending the ruling and tie the whole thing up in court for the rest of your natural life.

Also, remember that Superman isn't just a trademarked name, but a copyrighted character and that double legal status does give DC extra protection from anybody hiding a Superman character in a story even if the book or magazine is NOT cover-titled "Superman."

[bchat]

Second, there is NO difference between a registered trademark and a non-registered trademark in terms of "expiration" as implied by the post above.  A trademark can't and does not have to be "renewed."  As long as it's being used (active/in use), it's valid.  Copyrights have expiration dates, but trademarks exist forever as long as you use them forever.

There IS a difference between a Registered Trademark & a regular every day Trademark.  A ® costs money, and paperwork must be filed with the Trademark & Patent Office after five years proclaiming that the mark is still in use.  Every ten years, the ® has to be renewed, which includes yet another substantial fee.  On the other hand, an ordinary ™ costs nothing and there's no paperwork to deal with, it's simply a claim that a name or logo is being used as a way to brand something.

[Roygbiv666]

Didn't Dynamite Entertainment trademark "Black Terror" in their Project Superpowers series?

[bchat]

Didn't Dynamite Entertainment trademark "Black Terror" in their Project Superpowers series?

"Super Power Heroes, LLC" is the company name that PSP is Copyrighted under.

[Ed Love]

As Dynamite is now publishing a Black Terror series, I'd expect they would have trademarked it or at least tried, if for no other reason to cement the name as there are a few other publishers that have material which they could also publish under that name. AC has their business of reprints which Nedor is a staple, DC has the Terra Obscura which features a Black Terror character, and I guess Todd McFarland has the Eclipse Black Terror mini that could always be re-published as a trade.

To muddy things further, not ALL of the Nedor books were un-renewed. Some of the early issues of their anthology comics (including the Black Terror's origin story) were renewed as well as issue #2 of the Fighting Yank. It gets a bit byzantine after that as the company is sold, not for the comic line which they were no longer publishing but for their  paperback business to Fawcett books. Which then went to CBS, Inc who renewed some of the 1950s material only to later divest itself of Fawcett and Popular to two different companies, Ballentine and Warner Bros, respectively.

While most of those business sales can be tracked online, what cannot be is if the sales included or didn't include the comics and the copyrights. It could be a case of being orphaned works if the sales didn't include the defunct comic line as part of the umbrella. However, theoretically, this could mean that DC Comics as part of Time-Warner actually does own the early stories of the Nedor heroes. It would be interesting as it might also cover the characters the Black Bat aka the Mask that they almost sued over as infringement of their Batman character, just as they now have the rights to the more publicized Superman infringement Captain Marvel. Depending of course if the Black Bat pulps and the comics the Mask appeared in were part of the few that got renewed.

[Roygbiv666]

As Dynamite is now publishing a Black Terror series, I'd expect they would have trademarked it or at least tried, if for no other reason to cement the name as there are a few other publishers that have material which they could also publish under that name. AC has their business of reprints which Nedor is a staple, DC has the Terra Obscura which features a Black Terror character, and I guess Todd McFarland has the Eclipse Black Terror mini that could always be re-published as a trade.

To muddy things further, not ALL of the Nedor books were un-renewed. Some of the early issues of their anthology comics (including the Black Terror's origin story) were renewed as well as issue #2 of the Fighting Yank. It gets a bit byzantine after that as the company is sold, not for the comic line which they were no longer publishing but for their  paperback business to Fawcett books. Which then went to CBS, Inc who renewed some of the 1950s material only to later divest itself of Fawcett and Popular to two different companies, Ballentine and Warner Bros, respectively.

While most of those business sales can be tracked online, what cannot be is if the sales included or didn't include the comics and the copyrights. It could be a case of being orphaned works if the sales didn't include the defunct comic line as part of the umbrella. However, theoretically, this could mean that DC Comics as part of Time-Warner actually does own the early stories of the Nedor heroes. It would be interesting as it might also cover the characters the Black Bat aka the Mask that they almost sued over as infringement of their Batman character, just as they now have the rights to the more publicized Superman infringement Captain Marvel. Depending of course if the Black Bat pulps and the comics the Mask appeared in were part of the few that got renewed.

So, if I want Nedor's stuff, I could just buy DC/TIME-WARNER. Nice.