“Trademark, Patent, or Copyright?” Even Marvel’s “Thunderbolts®” Gets the Terms Tangled — A Quick Fix by Hannah Lee

Image courtesy of Pixabay (public domain / CC0) https://picryl.com/media/man-iron-hero-people-651af5

Have you seen THUNDERBOLTS®, the movie? In the extra credit scene, one character claims “Do you know he’s filed for ‘copyright’ of the name?” Another character replies, “AVENGERZ with a ‘Z’ there is no copyright.” Note: We are using this as an example and have no firsthand knowledge of exactly what the characters were thinking in this scene! :)

There are two issues here: 

1. The characters are likely intending to say “trademark” instead of “copyright.” 

The characters in Thunderbolts® when discussing their “new Avengerz” brand are likely trying to say the Avengers® team filed for a trademark not a copyright. Why? In a nutshell, a copyright is the protection of a creative work, not necessarily the brands associated with those works. A trademark on the other hand is a source identifying term or symbol. For example, the screenplay associated with an Avengers® movie could be protected under copyright law whereas AVENGERS® for action figures or backpacks are protectable under trademark law.

2. Adding a “Z” in place of an “S” may not necessarily avoid a trademark infringement claim.

It is often the case that a brand owner attempts to distinguish its trademark from another mark by adding a phonetically similar term, such as replacing “S” for “Z” or “KS” for “X.” In most cases, the mere addition of a phonetically similar letter or letters is not likely to distinguish two trademarks, especially if there is no common use of the wording in the space and if the goods or services are highly related. To a consumer, a crime-fighting team’s brand spelled with a “Z” might not be distinguishable from another team of superhumans with priority of use of their brand name. 

Here is a quick primer on IP terminology, including how long each type of protection can last:

• A trademark can be a word, phrase, design, or combination of these elements that identifies the source of goods or services and distinguishes them from others. Think of Marvel’s SPIDER-MAN® for a character in a series of comic books. Trademark rights can last indefinitely, as long as the mark is used in commerce and renewal filings (and proof of continued use) are timely made.

  
  

• Copyright is the exclusive right to reproduce, distribute, perform, display, and create derivative works for original artistic, literary, and creative works such as films, novels, software code, artwork, and more. For example, the Thunderbolts screenplay may be protected by copyright, which helps prevent others from reproducing or distributing that written work without permission. In the United States, copyright typically lasts for the life of the author plus 70 years (for most individual-authored works), though different rules can apply to works made for hire, anonymous works, and older works.

  
  

• Patent protection covers inventions and certain designs that are new, useful, and non-obvious. For instance, Stark Industries could have a utility patent on technology used in the IRON MAN® suit, which could help prevent others from making or selling similar suits without a license. Utility patents filed today generally last 20 years from the earliest effective filing date, while design patents generally last 15 years from issuance for applications filed on or after May 13, 2015.

For more information about protecting your superhuman team name or related matters contact Sisun Law.