5. In 1980—decades after the birth of super heroes—DC and Marvel jointly registered SUPER HEROES as a trademark.
6. DC and Marvel claim that no one can use the term SUPER HERO (or superhero, super-hero, or any other version of the term) without their permission. DC and Marvel are wrong. Trademark law does not permit companies to claim ownership over an entire genre. SUPER HERO is a generic term that should not be protected as a trademark.
7. Trademark law also does not allow competitors to claim joint ownership over a single mark. The purpose of a trademark is to identify a single source of goods and services.
20. DC has accused Superbabies of infringing DC’s “SUPER”-related trademarks, has filed an opposition to Superbabies’ trademark applications (TTAB Trademark Opposition No. 91290757), and has threatened further legal action. DC has asserted the exclusive right to use “the prefix SUPER followed by a generic term for a human being."
There's also some examples of SUPER HERO used as a generic term by DC and Marvel. I know of some companies being famously strict about trademark use (example https://www.velcro.com/original-thinking/the-velcro-brand-tr...), and yet these uses seem benign. For example, a splash at the top of a comic book "DCs BOLDEST new super-hero" (without TM, with dash). Now I have to be careful about using any of my company's trademarks. I'm not sure I fully understand how this example is generic and harmful.
> 7. Trademark law also does not allow competitors to claim joint ownership over a single mark. The purpose of a trademark is to identify a single source of goods and services.
I'm baffled how this was ever allowed in the first place. It's like Marvel and DC went to the trademark office and said "Yes! We'd like to collude to prevent any other competitors from using these terms." and the trademark office was like "Collusion it is! Have a nice day!"
I'm not surprised that you can pretend to do that in a trademark office, but I'm more surprised that it does not trigger an antitrust investigation by authorities as it is clearly the 2 dominant players colluding to prevent having any competition!
What would happen if DC and Marvel established a body of organizations concerned with comics, which just happened to consist of the two of them and nobody else, and that body was the one holding the trademark?
As far as I'm aware, that's a completely normal set of events, but the effect is the same.
The intended point of a trademark is essentially to prevent scams. E.g. nobody is allowed to sell something called an "apple computer" except apple. The interest doesnt change with time. (In contrast the theoretical point of copyright and patents is to allow people to recoup r&d costs. Eventually at some point the holder has had a fair shot at recouping the cost, so there is a time limit)
It was. However trademarks, much like patents, are made as generic as possible in order to give the company as much control and value as possible. Tech Dirt is filled with articles of trademark trolling.
> The USPTO's Trademark Trial and Appeal Board ruled for S.J. Richold's Superbabies Ltd after Disney's Marvel and Warner Bros' DC did not file an answer to Superbabies' request to invalidate the marks.
So, canceled after the companies declined to defend them.
> Marvel and DC have cited their marks in opposing dozens of superhero-related trademark applications at the USPTO, according to the office's records.
It's not like they haven't been using them, they just knew that at this point they'd have lost if they tried to actually fight it. Most previous groups probably folded immediately under pressure from the giants.
I imagine that the DC legal team were well aware that the trademark was indefensible but figured that the expense of counter suing a well funded industry giant would cause most small players to fold immediately. Their luck ran out in the end but they got a few decades out of it.
Honestly surprised the trademark wasn't nullified earlier. It's pretty clear the term has become genericised at best, and was in common use before the trademark at worst.
Guess it shows you the dangers of uneven legal resources, since I suspect if the folks whose trademarks were shot down using this had fought back, it probably would have cancelled way earlier.
>an article titled "A British Super Hero" in a 1918 newspaper
trademark does not work like patents, prior art is not a thing. The question is whether anyone else uses the mark in trade, exchanging money for goods/services. Usage outside of that context does not matter.
you get diluted and lose your trademark when the public uses the term generically in trade, in your line of business, and not in reference to your product, not just because they use the term.
for example, the automobile Mercury Comet is named after two generic things, a Greek god and an space body. So what, they are used in trade for particular automobiles.
Comet is also the name of a cleaning product. The two are not in the same line of business, so they don't get confused, and there is no conflict, but you can't start selling another Comet cleaner, or Comet car.
While there is no prior art, there is prior use, in trade. But in that case, the trademark belongs to the prior user, not to the world at large. If the prior user stops using it, like Aunt Jemima is no longer used for pancake syrup, then the term becomes free for anybody to use for pancake syrup. (I'll bet that company still uses that name for some pancake syrup product, like for institutional use, so they can stop anybody else from using it.)
> If the prior user stops using it, like Aunt Jemima is no longer used for pancake syrup, then the term becomes free for anybody to use for pancake syrup.
You know, I never thought of that. I kind of wonder why nobody has thought to revive those trademarks and take the market that the company had built up. I don't really believe that you would have enough pushback (because some people find the trademark offensive) to make it not worth one's while to get an instant market for their competing pancake syrup.
I'll bet that company still uses that name for some pancake syrup product
a related story: in many european countries the product "twix" was named "raider", until some day they decided to unify the brand and rename it to twix. but apparently, every few years they sell a batch under the old name "raider" presumably just so they can keep the trademark.
Never going to happen; too much investment. Not without something resetting the whole patent system all at once.
And hey, I’m not actually opposed to all patents. H.265 - if you put tens of millions into compression research, or hundreds of millions into database scaling research at PlanetScale, a temporary exclusivity period makes sense.
95% of software patents don’t reach that level.
I think some of the bad rap also comes from technology advancement. Amazon’s 1-click Checkout patent is notorious; but nobody talks about how much of an accomplishment that technology was in 1997. It actually was very impressive when that patent was granted, particularly in getting the credit card networks to agree to the security design.
Because of the nature of software patents the investment is worthless anyway.
One of the biggest problems with software patents is that they're unreasonably broad or ambiguous and then the claims read on arbitrary software the authors of which have never even heard of the patent.
Another is that companies purposely patent interfaces that are needed for compatibility, and then the patent isn't needed because it's so great, it's needed to interoperate with existing systems and thereby offers no ability for competitors to design a better alternative because better is different is incompatible. You have to license H.264 even if you build something better yourself -- or you've already licensed H.265 -- because you still have to be able to interact with media and clients that use H.264.
Then as between large companies, they all need each others' patents and just end up cross licensing everything. All the effort is for nothing because it just cancels out.
As between large companies and small companies, the large companies can sue the small one, but the small company probably doesn't have any money anyway and the suit makes the large company look like a bully and creates PR losses that likely outweigh any benefit from filing the suit. The small companies, on the other hand, can't sue the large ones because the large company would just file counterclaims and (at best) force the same cross-licensing that exists between large companies. So that's worthless.
Which leaves the only entities that really like software patents: Patent trolls. Eliminating them is a major economic benefit of eliminating software patents.
> Then as between large companies, they all need each others' patents and just end up cross licensing everything. All the effort is for nothing because it just cancels out.
As you explain in the next paragraph, that creates a moat the protects the large companies from the small ones.
They compete against each other but they also collectively defend their own kind.
You're describing another major benefit of eliminating software patents.
Even large companies don't actually benefit from that because their suppliers and companies in complementary markets do the same thing, and you lose any time any of those companies can maintain a moat with which to extract rents out of your own market.
These are deadweight economic losses. They hurt everybody to benefit the company doing them, but even that company is suffering a net loss because of all the companies doing it back to them. Yet they still do it because it's a tragedy of the commons, unless you remove the mechanism that enables it, i.e. software patents.
In an ideal world, all intellectual property would become public domain after 10-15 years, including all research, schematics, wire diagrams, source code, marketing materials, etc. When you go to the various offices to get your IP recognized you must also submit various materials and continue to do so for the life of your property rights.
Again though, in an ideal world. In reality any major changes to something like copyright would probably get you killed even faster than judges who are hard on drugs. The most that we, the people, can do until there’s some amount of backbone in our various countries is to remove ourselves from the primary market wherever we can. For instance, I have been on a successful Nintendo boycott for the last 8 years, and it’s been even longer for Disney. I buy anything I want secondhand or pirate it directly, I don’t pay into SaaS but use alternatives, and I feel a lot happier being ungovernable in this way.
Patents already require that all information be available, for someone similarly invested in the craft, to be able to completely reproduce the invention.
That doesn’t require an implementation - but that mirrors our regular patent office, which does not require physical functioning prototypes to demonstrate.
Have you filed or read any software patents? Many are so vague that they do not embody any significant "idea" or contribution, and are mostly just a hindrance to actual innovation. And some are just plain stupid, like the patent to average two integers without overflow.
Like the parent said, a compromise could be "source or GTFO". But even that seems of questionable value.
The shit show gets to the point where many companies file patents defensively. They'll file a patent just in case their competition does it first, even if they have nothing to show for it. And this naturally affects smaller companies disproportionately because they do not have the funds to pay lawyers (there is a hilarious interview on Youtube of a small startup CEO that explains how his company spends more on lawyers than engineers.)
So tl;dr, we'd probably be better off without software patents altogether.
A wiki specifically on the topic written by non-lawyers is interesting; but I don’t see why it should be considered an unbiased list of ideas. Sometimes the status quo is imperfect but okay.
Why did you specify “non-lawyers”? Did you mean to imply that something written by lawyers would be unbiased? And where did I ever claim that this was unbiased? It’s the “End Software Patents Wiki”; it’s about as biased as it gets. But I thought you wanted arguments, so I linked it. If you want to dismiss them without reading them, that’s up to you.
5. In 1980—decades after the birth of super heroes—DC and Marvel jointly registered SUPER HEROES as a trademark.
6. DC and Marvel claim that no one can use the term SUPER HERO (or superhero, super-hero, or any other version of the term) without their permission. DC and Marvel are wrong. Trademark law does not permit companies to claim ownership over an entire genre. SUPER HERO is a generic term that should not be protected as a trademark.
7. Trademark law also does not allow competitors to claim joint ownership over a single mark. The purpose of a trademark is to identify a single source of goods and services.
20. DC has accused Superbabies of infringing DC’s “SUPER”-related trademarks, has filed an opposition to Superbabies’ trademark applications (TTAB Trademark Opposition No. 91290757), and has threatened further legal action. DC has asserted the exclusive right to use “the prefix SUPER followed by a generic term for a human being."
There's also some examples of SUPER HERO used as a generic term by DC and Marvel. I know of some companies being famously strict about trademark use (example https://www.velcro.com/original-thinking/the-velcro-brand-tr...), and yet these uses seem benign. For example, a splash at the top of a comic book "DCs BOLDEST new super-hero" (without TM, with dash). Now I have to be careful about using any of my company's trademarks. I'm not sure I fully understand how this example is generic and harmful.
I'm baffled how this was ever allowed in the first place. It's like Marvel and DC went to the trademark office and said "Yes! We'd like to collude to prevent any other competitors from using these terms." and the trademark office was like "Collusion it is! Have a nice day!"
As far as I'm aware, that's a completely normal set of events, but the effect is the same.
And if it was granted in the late 60s, that’s what 30 years after Superman? Shouldn’t it have been common by then?
The intended point of a trademark is essentially to prevent scams. E.g. nobody is allowed to sell something called an "apple computer" except apple. The interest doesnt change with time. (In contrast the theoretical point of copyright and patents is to allow people to recoup r&d costs. Eventually at some point the holder has had a fair shot at recouping the cost, so there is a time limit)
Imagine if "PC compatible" got trademarked in 1997.
So, canceled after the companies declined to defend them.
It's not like they haven't been using them, they just knew that at this point they'd have lost if they tried to actually fight it. Most previous groups probably folded immediately under pressure from the giants.
Was it overconfidence, or a a gigantic blunder in not doing their diligence ? (by the DC legal dept team)
Guess it shows you the dangers of uneven legal resources, since I suspect if the folks whose trademarks were shot down using this had fought back, it probably would have cancelled way earlier.
trademark does not work like patents, prior art is not a thing. The question is whether anyone else uses the mark in trade, exchanging money for goods/services. Usage outside of that context does not matter.
you get diluted and lose your trademark when the public uses the term generically in trade, in your line of business, and not in reference to your product, not just because they use the term.
for example, the automobile Mercury Comet is named after two generic things, a Greek god and an space body. So what, they are used in trade for particular automobiles.
Comet is also the name of a cleaning product. The two are not in the same line of business, so they don't get confused, and there is no conflict, but you can't start selling another Comet cleaner, or Comet car.
While there is no prior art, there is prior use, in trade. But in that case, the trademark belongs to the prior user, not to the world at large. If the prior user stops using it, like Aunt Jemima is no longer used for pancake syrup, then the term becomes free for anybody to use for pancake syrup. (I'll bet that company still uses that name for some pancake syrup product, like for institutional use, so they can stop anybody else from using it.)
You know, I never thought of that. I kind of wonder why nobody has thought to revive those trademarks and take the market that the company had built up. I don't really believe that you would have enough pushback (because some people find the trademark offensive) to make it not worth one's while to get an instant market for their competing pancake syrup.
a related story: in many european countries the product "twix" was named "raider", until some day they decided to unify the brand and rename it to twix. but apparently, every few years they sell a batch under the old name "raider" presumably just so they can keep the trademark.
Oh, I wonder if that's why Mars are doing a limited run of "Snickers" named as "Marathon".
https://www.theguardian.com/business/2024/sep/20/mars-brings...
Apparently Charles Lindburgh was known in the USA as a "super-hero". http://nla.gov.au/nla.news-article95784232
And hey, I’m not actually opposed to all patents. H.265 - if you put tens of millions into compression research, or hundreds of millions into database scaling research at PlanetScale, a temporary exclusivity period makes sense.
95% of software patents don’t reach that level.
I think some of the bad rap also comes from technology advancement. Amazon’s 1-click Checkout patent is notorious; but nobody talks about how much of an accomplishment that technology was in 1997. It actually was very impressive when that patent was granted, particularly in getting the credit card networks to agree to the security design.
Because of the nature of software patents the investment is worthless anyway.
One of the biggest problems with software patents is that they're unreasonably broad or ambiguous and then the claims read on arbitrary software the authors of which have never even heard of the patent.
Another is that companies purposely patent interfaces that are needed for compatibility, and then the patent isn't needed because it's so great, it's needed to interoperate with existing systems and thereby offers no ability for competitors to design a better alternative because better is different is incompatible. You have to license H.264 even if you build something better yourself -- or you've already licensed H.265 -- because you still have to be able to interact with media and clients that use H.264.
Then as between large companies, they all need each others' patents and just end up cross licensing everything. All the effort is for nothing because it just cancels out.
As between large companies and small companies, the large companies can sue the small one, but the small company probably doesn't have any money anyway and the suit makes the large company look like a bully and creates PR losses that likely outweigh any benefit from filing the suit. The small companies, on the other hand, can't sue the large ones because the large company would just file counterclaims and (at best) force the same cross-licensing that exists between large companies. So that's worthless.
Which leaves the only entities that really like software patents: Patent trolls. Eliminating them is a major economic benefit of eliminating software patents.
As you explain in the next paragraph, that creates a moat the protects the large companies from the small ones.
They compete against each other but they also collectively defend their own kind.
Even large companies don't actually benefit from that because their suppliers and companies in complementary markets do the same thing, and you lose any time any of those companies can maintain a moat with which to extract rents out of your own market.
These are deadweight economic losses. They hurt everybody to benefit the company doing them, but even that company is suffering a net loss because of all the companies doing it back to them. Yet they still do it because it's a tragedy of the commons, unless you remove the mechanism that enables it, i.e. software patents.
For PlanetScale, are you sure the patents are necessary when they have copyright on all their code?
I'd say that productivity-enhancing software patents are so vanishingly rare that we barely need to consider them.
Also software is math, it's not supposed to be patentable.
Again though, in an ideal world. In reality any major changes to something like copyright would probably get you killed even faster than judges who are hard on drugs. The most that we, the people, can do until there’s some amount of backbone in our various countries is to remove ourselves from the primary market wherever we can. For instance, I have been on a successful Nintendo boycott for the last 8 years, and it’s been even longer for Disney. I buy anything I want secondhand or pirate it directly, I don’t pay into SaaS but use alternatives, and I feel a lot happier being ungovernable in this way.
That doesn’t require an implementation - but that mirrors our regular patent office, which does not require physical functioning prototypes to demonstrate.
That's not always the case. For example, patents around nuclear technology:
• https://en.wikipedia.org/wiki/Invention_Secrecy_Act
Have you filed or read any software patents? Many are so vague that they do not embody any significant "idea" or contribution, and are mostly just a hindrance to actual innovation. And some are just plain stupid, like the patent to average two integers without overflow.
Like the parent said, a compromise could be "source or GTFO". But even that seems of questionable value.
The shit show gets to the point where many companies file patents defensively. They'll file a patent just in case their competition does it first, even if they have nothing to show for it. And this naturally affects smaller companies disproportionately because they do not have the funds to pay lawyers (there is a hilarious interview on Youtube of a small startup CEO that explains how his company spends more on lawyers than engineers.)
So tl;dr, we'd probably be better off without software patents altogether.
How exactly is removing the confirmation prompt for the purchase basket a technical accomplishment?
But 99.9% of legal arguments are copies. I.e. ideas with precedence. Copying is to be encouraged.
If legal ideas, which are the fallback of all our rights, could be owned, not even a veneer of justice would remain.