if batman ashcan existed

[buttock]

Do I think it would stand up in court now after years of association and TM to a single character? No.

 

Do I think in 1939 someone could make a comic called "Superman Comics" and it stars "Johnny Weismuller - the real live Superman", or "Jesse Owens, Superman of the Olympics"? Possibly. The character had not already been entrenched and they were wishing to secure the title before someone tried to get it first.

 

Marvel certainly started a title called Captain Marvel Comics in the 60s, even though the character had long been published by someone else.

 

I think you unintentionally may have stumbled onto why those were "ashcan-ed" (can that be a verb?). Superman and Wonder Woman are descriptive terms, and relatively non-specific. They can be applied to anyone of that gender without absolutely implying that you're talking about the character. Other characters - Batman, GL - are absolutely specific to the DC character, and thus wouldn't warrant an attempt at securing the trademark (thank you adamstrange).

 

And I'd like to add this classic from Ashcan/comics initial attempt to deceive us all....

 

[buttock]

Copymarks it is. I personally would say Copyright - just so adamstrange is wrong - but I'm no lawyer.

[adamstrange]

I just want to add a clarification. Ashcans were used for copyrights - not trademarks.

 

 

Here's a link for us un-lawyer types. Ashcans are for trademarks.

 

link

 

Regarding Marvel and Captain Marvel, the simplest explanation is that Marvel swooped in when it found that the trademark for CAPTAIN MARVEL ADVENTURES had expired and published its own Captain Marvel comic book, thereby securing the trademark. As is well known, this is why DC produced ashcan issues of comics titled SUPERBOY, SUPERWOMAN, and SUPERMAN COMICS, and Fawcett THRILL COMICS and NICKEL COMICS without regard for the contents. The companies needed to show that they had a magazine on sale in commerce to secure the associated trademark.

[adamstrange]

1. Names cannot be copyrighted, Any name may be used by any author at any time. However, if you plan on calling your character "Batman," he damn well better not resemble any variation of the character ever published by DC or else you could be hauled in on a copyright infringement allegation.

 

2. Marvel did not need to secure the permission of anyone to create a character named "Captain Marvel."

 

3. Titles of periodicals may be trademarked.

 

4. For a trademark to remain valid, it must be maintained which requires an occasional payment and use in commerce. When Fawcett stopped publishing "Captain Marvel Adventures," it really couldn't protect the trademark because it couldn't publish Captain Marvel anymore. The trademark fell into the public domain and anyone who wanted to could publish a comic book with that title.

 

5. When use of the name became clear (that is, neither Fawcett nor M.F. Enterprises held the trademark on the name for a comic book), Marvel published Marvel Super-Heroes #12 cover featuring Captain Marvel. That began the process of its securing CAPTAIN MARVEL for its exclusive use as a trademark for a comic book.

 

6. Because Marvel owns that trademark for use on a comic book, DC cannot use the name of Captain Marvel on the cover of its comics. To do so would infringe on Marvel's trademarked name. This created the situation that people think "Shazam" is the name of the Big Red Cheese.

 

7. If Marvel hadn't secured the use of "Captain Marvel" as a trademark, DC could have. However, because Marvel owns MARVEL, and thereby the exclusive use of it on comic book covers, DC would still have been fighting an uphill battle. This makes DC's use of "Shazam" as the trademark associated with the original Cap more understandable: there is nothing to prevent DC (or Dark Horse or Image) from using a character in its comics named "Captain Marvel," but there is plenty to prevent any of those companies from using "Marvel" on its covers.

[JJBEE2001]

They're for TRADEMARKS, not copyrights. Only one of my ashcans is slabbed, and it says "Used to trademark title" right on the label.

 

[Crowzilla]

I think you unintentionally may have stumbled onto why those were "ashcan-ed" (can that be a verb?). Superman and Wonder Woman are descriptive terms, and relatively non-specific. They can be applied to anyone of that gender without absolutely implying that you're talking about the character. Other characters - Batman, GL - are absolutely specific to the DC character, and thus wouldn't warrant an attempt at securing the trademark (thank you adamstrange).

 

Unintentionally?

It seemed pretty obvious to me. Just like they did Superwoman and Action Funnies to keep from similar titles coming out even though they had no intention of publishing them.

You don't trademark the characters Batman or GL - you copyright them.

What you trademark is the bat-symbol in the yellow circle emblem, or the GL ring - or the way the logo is written.

So you enter the Superman ashcan and you protect not only the title, but the distinctive way it is written.

[buttock]

I just want to add a clarification. Ashcans were used for copyrights - not trademarks.

 

 

Here's a link for us un-lawyer types. Ashcans are for trademarks.

 

link

 

Regarding Marvel and Captain Marvel, the simplest explanation is that Marvel swooped in when it found that the trademark for CAPTAIN MARVEL ADVENTURES had expired and published its own Captain Marvel comic book, thereby securing the trademark. As is well known, this is why DC produced ashcan issues of comics titled SUPERBOY, SUPERWOMAN, and SUPERMAN COMICS, and Fawcett THRILL COMICS and NICKEL COMICS without regard for the contents. The companies needed to show that they had a magazine on sale in commerce to secure the associated trademark.

 

I prefer the term "ign'it".

[esquirecomics]

Folks, no need to discuss whether ashcans were used for purposes of trademark or copyright. They were used to trademark, and I am an attorney!

 

Why ashcans were created for some titles but not others is a mystery we will likely never solve. You can read all about it in the OS 2008 article Moondog and I co-wrote.

 

BTW, if anyone is interested in testing DC for either trademark or copyright infringement, you will see a quick response. DC (or more precisely Warner Brothers) actively protects its products. For example:

 

DC COMICS, Plaintiff, against KRYPTONITE CORPORATION, Defendant.

 

00 CV 5562 (RO)

 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

 

336 F. Supp. 2d 324; 2004 U.S. Dist. LEXIS 18885

 

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff comic book publisher sued defendant bicycle accessories company and alleged claims for breach of contract and trademark infringement and unfair competition in violation of the Lanham Act, 15 U.S.C.S. § 1051 et seq,. The company alleged counterclaims for, inter alia, rescission and breach of contract. The company moved for summary judgment. The publisher cross-moved for partial summary judgment on the company's counterclaims.

 

OVERVIEW: The publisher invented kryptonite in connection with a radio program about the adventures of Superman. The company began using the "kryptonite" trademark on a limited basis in connection with its bike locks without the permission of the publisher. The publisher and the company reached an agreement that limited the company's use of the trademark to security devices and accessories and accessories primarily for two wheeled vehicles. The company also agreed that it would not expand its use of the marks. The publisher contended that the company breached the agreement when it filed trademark applications indicating an intention to use the trademark with other products. The company's motion for summary judgment on the publisher's claims for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C.S. § 1051 et seq., was denied because the company failed to establish that the publisher did not own a trademark in Kryptonite since Kryptonite was an element associated with Superman entertainment products and it was thus entitled to protection under the Lanham Act, and there were a number of triable issues of fact regarding likelihood of confusion.

 

OUTCOME: The company's motion for summary judgment was denied as to the breach of contract, trademark infringement, and unfair competition claims. The publisher's motion for summary judgment was granted as to the company's recission and abandonment counterclaims and was denied as to the claims for breach of contract and to enjoin the publisher from using and registering the trademark in connection with two wheeled vehicles.

[DarrenSmith]

Mark,

 

If they were used for trademarks shouldn't there still be a record of them? Why can't someone do the research and compile a list of all ashcans?

 

 

[DarrenSmith]

Info on Superboy Ashcan?

 

 

Word Mark SUPERBOY

Goods and Services IC 016. US 038. G & S: Magazine Publication. FIRST USE: 19410901. FIRST USE IN COMMERCE: 19410901

Mark Drawing Code (5) WORDS, LETTERS, AND/OR NUMBERS IN STYLIZED FORM

Serial Number 71448096

Filing Date October 25, 1941

Current Filing Basis 1A

Original Filing Basis 1A

Registration Number 0394923

Registration Date May 5, 1942

Owner (REGISTRANT) Detective Comics, Inc. CORPORATION NEW YORK 480 Lexington Avenue New York NEW YORK

 

(LAST LISTED OWNER) DC COMICS GENERAL PARTNERSHIP BY ASSIGNMENT, BY ASSIGNMENT, BY MERGER, BY CHANGE OF NAME, BY MERGER, BY CHANGE OF NAME, BY CHANGE OF NAME, BY ASSIGNMENT, BY ASSIGNMENT NEW YORK 1700 BROADWAY NEW YORK NEW YORK 10019

Assignment Recorded ASSIGNMENT RECORDED

Attorney of Record JANET A. KOBRIN

Prior Registrations 0371803;0391821

Type of Mark TRADEMARK

Register PRINCIPAL

Affidavit Text SECTION 8(10-YR) 20020725.

Renewal 3RD RENEWAL 20020725

Live/Dead Indicator LIVE

[DarrenSmith]

Info on Superwoman Ashcan?

 

Word Mark SUPERWOMAN

Goods and Services IC 016. US 038. G & S: Magazine Publication. FIRST USE: 19410901. FIRST USE IN COMMERCE: 19410901

Mark Drawing Code (5) WORDS, LETTERS, AND/OR NUMBERS IN STYLIZED FORM

Serial Number 71448076

Filing Date October 24, 1941

Current Filing Basis 1A

Original Filing Basis 1A

Registration Number 0394922

Registration Date May 5, 1942

Owner (REGISTRANT) Detective Comics, Inc. CORPORATION NEW YORK 480 Lexington Avenue New York NEW YORK

 

(LAST LISTED OWNER) DC Comics Inc. CORPORATION NEW YORK 1700 BROADWAY New York NEW YORK 10019

Assignment Recorded ASSIGNMENT RECORDED

Prior Registrations 0371803;0391821

Type of Mark TRADEMARK

Register PRINCIPAL

Affidavit Text SECTION 8(10-YR) 20021119.

Renewal 3RD RENEWAL 20021119

Live/Dead Indicator LIVE

[DarrenSmith]

Info on Supergirl Ashcan?

 

Word Mark SUPERGIRL

Goods and Services IC 016. US 038. G & S: COMIC PICTURE MAGAZINE PUBLICATION. FIRST USE: 19410901. FIRST USE IN COMMERCE: 19410901

Mark Drawing Code (5) WORDS, LETTERS, AND/OR NUMBERS IN STYLIZED FORM

Serial Number 71476278

Filing Date November 9, 1944

Current Filing Basis 1A

Original Filing Basis 1A

Registration Number 0414623

Registration Date June 19, 1945

Owner (REGISTRANT) DETECTIVE COMICS, INC. CORPORATION NEW YORK 480 LEXINGTON AVE., NEW YORK NEW YORK

 

(LAST LISTED OWNER) DC COMICS LIMITED PARTNERSHIP DELAWARE 1700 Broadway NEW YORK NEW YORK 10019

Assignment Recorded ASSIGNMENT RECORDED

Attorney of Record Janet A. Kobrin

Prior Registrations 0371803;0391821;0394922;0394923;AND OTHERS

Type of Mark TRADEMARK

Register PRINCIPAL

Affidavit Text SECTION 8(10-YR) 20041105.

Renewal 3RD RENEWAL 20041105

Live/Dead Indicator LIVE

[esquirecomics]

Mark,

 

If they were used for trademarks shouldn't there still be a record of them? Why can't someone do the research and compile a list of all ashcans?

 

 

There is some info out there, such as what you located in the online database.

 

Unfortunately I found out the USPTO destroyed most of its older files in the late 1970s so all the paper would be gone. I've been meaning to go over there and try their library to see if there is any possibility something survived. Just need to find the time.

[Transplant]

Mark,

 

If they were used for trademarks shouldn't there still be a record of them? Why can't someone do the research and compile a list of all ashcans?

 

 

There is some info out there, such as what you located in the online database.

 

Unfortunately I found out the USPTO destroyed most of its older files in the late 1970s so all the paper would be gone. I've been meaning to go over there and try their library to see if there is any possibility something survived. Just need to find the time.

Like you have anything else going on.

[DarrenSmith]

I have located the trademark document for the Batman comic book logo. It is dated March 12, 1940, it says its a logo for a Magazine and states they have included five specimens showing the trade-mark as actually used. So I assume it is either an ashcan or copies of Batman #1. I have attached the document (it is in .pdf format) The trademark office lists it with a filing date of April 19, 1940.

 

I have also include another trademark document for Batman I located. The trademark office lists it with a filing date of November 15, 1939.

 

Darren Smith

 

50792-BatmanComicBookTrademarkDocument.pdf

50793-BatmanTrademarkDocument.pdf

[Moondog]

I have located the trademark document for the Batman comic book logo. It is dated March 12, 1940, it says its a logo for a Magazine and states they have included five specimens showing the trade-mark as actually used. So I assume it is either an ashcan or copies of Batman #1. I have attached the document (it is in .pdf format) The trademark office lists it with a filing date of April 19, 1940.

 

I have also include another trademark document for Batman I located. The trademark office lists it with a filing date of November 15, 1939.

 

Darren Smith

 

 

Darren:

 

Thanks for digging this stuff up. Much appreciated!

 

--Gary

[DarrenSmith]

More Ashcan stuff:

 

I found the trademark document for Action Comics its filing date is Jan 28, 1938, was registered on Sept 27, 1938. It states they sent in 5 samples. I have attached it in pdf format.

 

Darren Smith

 

 

50805-Action-Comics-1-Patent-Document.pdf