Name Resembles Established Franchise Character- Use Anyway?

[Mindfire]

You don't understand how trademarks work, Mindfire.

The only thing you can't trademark is a word that is generic for whatever goods or services you want to trademark it for. So getting a trademark for "fish" to sell fish is out. If you start a car company called Fish, you can get a trademark on it. Even if you could get a trademark on "fish" covering actual fish, I'm not sure what makes you think a fisherman would have to give you a cut of his profits.

A perfect example of a trademark on a mythological figures is Thor. Marvel comics, as you might imagine, has a trademark covering that. In fact, it looks like they have numerous trademarks on that name going back to the early 1970s. If you make a superhero named Thor, you've got a potential problem on your hands, mythological figure or not. Marvel doesn't have qualms about going after people.

But suppose I make a comic book/film/animated series about Norse mythology? Would I just not be allowed to include Thor alongside Odin, Baldur, Freya, etc.? Or suppose I'm writing a fantasy book about the Norse people? Are they not allowed to talk to or interact with Thor at all?

 

[Steerpike]

But suppose I make a comic book/film/animated series about Norse mythology? Would I just not be allowed to include Thor alongside Odin, Baldur, Freya, etc.? Or suppose I'm writing a fantasy book about the Norse people? Are they not allowed to talk to or interact with Thor at all?

Technically, it all comes down to the likelihood of consumer confusion. In practice, trademark owners tend to get a bit more latitude than that. If your Norse pantheon were superheroes, I could see Marvel coming after you and I think they'd have a good chance of forcing you to stop using Thor. If you were illustrating Norse mythology, and not writing a comic book about a superhero, I suspect it would be tough for Marvel unless your character looked a lot like their Thor (and then Copyright comes back in).

If you're just writing a regular fantasy book where Thor happens to be a character, I don't think Marvel would have much of a case, and it is unlikely you'd be using "Thor" in a trademark sense (i.e. in a way that would cause a consumer to be confused).

Also, I suppose I should add that if Marvel could make the case that their "Thor" trademark was famous, then they wouldn't have to show confusion. There are other ways they could try to come after you.

If Marvel did decide to sue you, it would cost you a bundle even if you beat them.

 

[Mindfire]

Ah, but what's the likelihood of something like that happening? How probable is it that Marvel would come after a guy like me for writing a fantasy book on Norse mythology? Hopefully not very.

 

[Steerpike]

Ah, but what's the likelihood of something like that happening? How probable is it that Marvel would come after a guy like me for writing a fantasy book on Norse mythology? Hopefully not very.

Slim to none, would be my guess. They've really got no reason to come after you for that. If you were doing something directly within their own sphere of products, like writing a comic book featuring a superhero named Thor, or selling a toy action figure Thor (even if it was supposed to be part of a line of Norse god action figures and not a superhero), I think you'd run a decent risk of them coming after you and winning.

 

[Mindfire]

Slim to none, would be my guess. They've really got no reason to come after you for that. If you were doing something directly within their own sphere of products, like writing a comic book featuring a superhero named Thor, or selling a toy action figure Thor (even if it was supposed to be part of a line of Norse god action figures and not a superhero), I think you'd run a decent risk of them coming after you and winning.

Gotcha. Although judging by the number of Marvel superhero knockoff toys...

 

[Steerpike]

Gotcha. Although judging by the number of Marvel superhero knockoff toys...

As long as they aren't using trademarked terms...

I represented a comic book/toy producer for a few years at one firm I was at, and we had good success going after knockoffs or infringing items.

 

[Caged Maiden]

When we use our own ancient cultures, it becomes tricky. I've researched Norse names and Anglo-Saxon names, and many are hard to pronounce for people who have not dealt with their pronunciation much. In fact, I just did a bunch of Italian names for my WIP and I think those too will give readers a fair amount of trouble, so I tried to stick with just the ones that were easy to pronounce. Well, that leaves us with a limited number of names in these cultures, and unfortunately, many of them have been used before. So, use the names you think best suit your characters, and try to make sure they can't be confused.

I Just had to make a decision about a character (with a Norse name), and I decided to go with Radulfr, shortened to Rad. Yeah, it drew a little smirk from my crit partner, but the alternative was to go with Randulfr, shortened to Rand, so I decided, even if Rad isn't the best name, at least it's better than an already popular name. Do I like it as much? No. But it's a support character and I can always change it later if I feel inclined to do so... what's one letter?

 

[Ravana]

In fact, both Marvel and DC make use of entire historical pantheons–Marvel to a greater extent than DC–including using some of the same names even in cases where they might otherwise have agreed to divvy up the field ("You take the Greek names, we'll take the Roman ones"). So it would be somewhat hypocritical for them to go after someone just for using a name. Likenesses would be more likely to cause trouble: unfortunately, Marvel had Thor grow a beard at various points, so you can't get away with simply making your Thor look like an actual Viking.

Even the name plus well-known attributes shouldn't be too much of a problem: Thor was strong, carried a hammer called Mjolnir, was associated with weather, and so forth. Give him a red cape, blue tunic, and a winged helmet, let him fly by "throwing" his hammer, and open dimensional portals by spinning it, and you're in a completely different ballpark.

DC, by the way, does have its own version of Thor–well, four versions, actually (or five, if you count the one who appeared in Gaiman's Sandman… or six if you count Thor the Thunder Dog*). The first of them appeared in 1942, fighting the original Sandman, twenty years before Marvel's character appeared; the second appeared in Batman in 1959, three years earlier–and a mag that can, I think, be solidly considered one of their flagship titles. Marvel got away with creating their own anyway. (Probably helped that he was a hero, not a villain. It's little things like that which can make the difference to a court. )

Which still does not make Steerpike incorrect. Just puts the potential conflict into a slightly different context.

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* Sadly, I'm not kidding.

 

[morfiction]

So I have to rename Bleach?

 

[Graylorne]

Aren´t Thor and the others members of a currently recognised religion? I can't imagine anyone claiming copyright on a God.

 

[Mindfire]

Aren´t Thor and the others members of a currently recognised religion? I can't imagine anyone claiming copyright on a God.

Copyright no. But trademark is apparently a bit different.

 

[Benjamin Clayborne]

Aren´t Thor and the others members of a currently recognised religion? I can't imagine anyone claiming copyright on a God.

You don't have to imagine it; as was pointed out, Marvel has had a trademark on "Thor" (with regard to superheroes) for decades. Their trademark on "THE MIGHTY THOR" (in the domain "IC 016. US 038. G & S: PUBLICATIONS, PARTICULARLY COMIC MAGAZINES AND STORIES IN ILLUSTRATED FORM. FIRST USE: 19620800. FIRST USE IN COMMERCE: 19620800") was registered in 1967, and they also got a trademark on just "THOR" for the same domain in 1972.

There are more than 283 trademarks in the USPTO database (most of them dead) that include "THOR" in them.

The copyrights Marvel have with regards to Thor would involve his particular costume and characterization. Someone else could quite legally write a story about Thor, the Norse god, running around doing things, as long as it wasn't too similar to the way Marvel has done things.

 

[Steerpike]

Most writers don't have a great understanding of the differences between trademarks and copyright. It is a good thing to know.