Can a superhero register his or her name as a trademark? How do the trademark eligibility requirements jibe with the activities of the night-prowling fighters for justice that we all know and love?
Let’s look at the case of Detroit’s own Scourge of the Sewers: Rat-Man.
While we sleep at night, Rat-Man prowls the underground tunnels below the Motor City, battling sewer-related criminal activity with his radioactive Power-Tail and unmatchable gnawing power.
Beloved throughout southeast Michigan, if not exactly welcome in our homes for dinner, Rat-Man has effectively eliminated the threat of the sinister Pipe Cabal and, in the early 1990s, captured the vile Toilet Master once and for all.
Thanks to Rat-Man, Detroit is a less odious place than it would be.
Children love him. We all love him. Just—again—not so much for dinner. Not in the living-room. Not on the sofa.
That all said, can Rat-Man register his superhero name as a Federal trademark?
We know that, when it comes to crime, Rat-Man has what it takes … How about when it comes to the US Patent and Trademark Office?
Trademark Registration Eligibility and Superhero Names: A Primer
Unfortunately for Rat-Man, trademark law in the US is not like copyright law. You can’t register a word or name as a trademark just because you thought it up and don’t want anyone else to use it.
The purpose of trademark law in the US is not to protect you, the creator or inventor of a word or name, or you, the artist who designed a nifty graphic logo.
The purpose of trademark law in the US is to protect consumers’ right to know what they are buying—and from whom.
So the primary questions here for Rat-Man’s prospective trademark registration are:
- What is he selling?
- Is the name “Rat-Man” unique enough to identify him of the source of whatever it is that he’s selling?
- Is the name “Rat-Man” merely descriptive or is it likely to confuse consumers?
What Is Rat-Man Selling? Trademark Registration & Interstate Commerce
In order for Rat-Man to register a trademark, Rat-Man must be using that trademark in interstate commerce.
The question thus is whether, by fighting crime under that name primarily in the City of Detroit, Michigan, Rat-Man’s usage is “in interstate commerce.”
That means, essentially, that the name is being marketed across state lines.
If the usage of a name or logo does not cross state lines, the Federal government has no jurisdiction over it. Whether it can be registered as a trademark or not is question of state and not Federal law. Michigan and most other states do maintain intra-state (in-state only) trademark registration databases for that reason.
However, the question here pertains to Federal trademark registration.
If Rat-Man simply runs around Detroit sewer system punching out subterranean bad guys, it would not seem that he is acting in interstate commerce in any way.
However, what if Rat-Man maintained a website and sold t-shirts and other merchandise from it? What if Rat-Man, in this day and age, acted as a sort of influencer and live-streamed his exploits on Facebook, YouTube, or Twitch? What if he posted the photos of his unconscious, vanquished foes on Instagram?
Anything transacted on the internet easily meets the “interstate” requirement.
With regard to commerce, a name, slogan, or logo must be used as a source identifier for a specific good or service in interstate commerce to be registered as a trademark.
A source identifier means that the name, slogan, or logo identifies the source of that product to consumers.
The distinctive and familiar red and silver scrolled typeface of Coca Cola, for example, is a source identifier for The Coca Cola Bottling Co. of Atlanta, GA. When people see a can of Coke on a store shelf, they know it comes from that company, in other words.
What source does “Rat-Man” identify?
Well, Rat-Man. As an individual or, if he were to form a corporation or LLC to function as owner of the “Rat-Man” trademark for licensing (and anonymity) purposes.
With what product or service is “Rat-Man” associated?
First, the product or service must be legal under Federal law to be registrable as a trademark.
This is the reason that products containing certain levels of THC remain unregistrable as Federal trademarks. Despite the proliferation of a state laws legalizing the use of cannabis or cannabis-related products, these products remain illegal under Federal law.
Is vigilantism legal or illegal?
This is essentially the service Rat-Man provides. However, without some sort of private investigator or other license from the State of Michigan, it is likely not legal within the parameters of state law. Federal law does not likely address the issue one way or another.
Their service? “Crime prevention services – namely, providing security patrols.”
Sounds a lot like what Rat-Man does, huh? (Except with fewer sewers.)
Likewise, if Rat-Man is selling t-shirts or other merch, he could be associating his name or logo with wearing apparel or other such products. Services such as live-streaming or the online provision of non-downloadable video content may likewise support a trademark registration application.
In other words, Rat-Man’s trademark registration application is looking good.
Likelihood of Confusion & Mere Descriptiveness Problems for Rat-Man
A trademark may only be registered if it is unique enough to act, as noted above, as a source identifier.
That is, it must be unique enough to identify you as the source of the product or service for which it is registered (and with which it is marketed).
A trademark cannot merely describe the product or service being sold and/or the geographic area in which it is sold or from which it is sourced.
As can be seen from the amazing drawing of Rat-Man accompanying this article, Rat-Man is quite literally a man who is also partly a rat.
Does the name “Rat-Man” convey a “mere descriptiveness” issue that would give rise to a refusal to register our hero’s trademark registration application by the USPTO Examiner assigned to his file?
Well, who can say what a USPTO Examiner would or wouldn’t do, but, generally, that should not be a concern.
Rat-Man’s crime-fighting service is not a “rat” or a “man.” If he sells merchandise, he is selling t-shirts or hoodies commemorating his dismantling over the Detroit-wide crime syndicate The Fifth Wheel. These things are not “rats” or “men.”
He is probably okay on that front. If he were to re-name himself, “The Detroit Superhero,” that would be more problematic for him.
In terms of likelihood confusion issues, the question here is whether a generic consumer would be likely (not certain) to be confused as to the source of Rat-Man’s product or service.
Here, Rat-Man may have a problem.
You know why. That other guy. That much better-known superhero about whom 50 years’ worth of comic-books have been generated, as well as multiple movies and TV shows and cartoons and children’s Halloween costumes …
The one whose name sounds suspiciously like Rat-Man’s, only involving a slightly different furry animal.
You know: one with wings.
We won’t name names.
As noted, it is not necessary that a name be certain to confuse consumers, only that it be likely to do so.
If you were to sell a carbonated soft drink called Zoca Zola, that name is not exactly like “Coca Cola”—but it’s close enough that the USPTO would be pretty sure to decide that a consumer, somewhere, would be likely to confuse one of these superheroes with the other one.
Rat-Man might be able to argue, in response, that he advertises his service in a specific market, through different channels of trade, or that the two names have co-existed for a number of years without any actual confusion—but, regardless, it could be a problem for him.
Rat-Man might consider re-branding and renaming himself before filing a trademark application.
It’s worth keeping in mind that, even if he satisfies the USPTO Examiner that there is no likelihood of confusion, that other superhero might disagree and can also oppose Rat-Man’s trademark registration.
And that other guy, as we all know, is extremely well-funded.
He’s got his cave and everything!
Rat-Man, meanwhile, is, in actuality, simply a Wayne State University creative writing grad student and is quite the opposite of well-funded.
Something to keep in mind.
Authorization from Living-Persons Required
One further issue, although a very minor one in this case: a trademark incorporating the name of a living person requires the express authorization of that person to register.
In this instance, Rat-Man is attempting to register his own nom de guerre as a trademark. He can provide his own authorization (and must) in the application form.
If he were trying to register that other guy’s name as a trademark, that would be a problem.
The Superhero’s Right of Publicity (Really, Anybody’s)
It is worth noting that trademark registration does not provide the only source of protection for a person like Rat-Man.
We each have a common law “right of publicity” that allows us to protect our names, likenesses, and other indicia of identity (including pseudonyms and nom de guerres) for our own commercial benefit.
Should any insidious evildoer appear using the name “Rat-Man,” our hero would have the right to sue for injunctive relief requiring the cessation of use of the name and damages.
This is a right that lies parallel to trademark registration.
Of course, filing such a lawsuit would likely result in the public disclosure of Rat-Man’s secret identity—Herman Norvegicus, Wayne State student.
Wait—whoops! Sorry, Rat-Man! Our bad!
Conclusion: Names and Trademark Registration
The bottom line here is that a name used for commercial purposes, whether for-profit or non-profit, can be registered as a trademark so long as it meets the basic requirements for trademark registration.
Whether you are an online influencer, an actor, a musician, or a superhero, the protection of your brand through trademark registration is a step worth taking.
The Hilla Trademark Law Firm is, like Rat-Man, based in Metro Detroit, but we service clients across the U.S. and globally for Federal trademark registration matters.
We offer virtual consultations and communication but personal and available customer service.
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