There’s a battle brewing in the pages of Spider-Man comic books, and it isn’t one our hero can websling his way out of. It’s a battle over who gets to use the name Spider-Man at all.
That’s right. Law geeks and comic geeks rejoice! It’s a superhero trademark battle.
Though its origins go back years, the battle seems to kick off in the closing pages of Miles Morales: Spider-Man #32, when lawyer-looking guys in black suits pull up to Miles in their floating limo hovercar (‘cuz comics) and serve him with papers. It’s not clear if it’s a lawsuit or just a strongly worded cease-and-desist letter, but the message is clear:
Miles can’t use the Spider-Man name or likeness because somebody else – the shadowy Beyond Corporation – owns the trademark and it has its own Spider-Man.
Wait, what? Multiple Spider-Men? Or is it “Spider-Mans”? Anyway, here’s a short summary:
There are at least 3 Spider-Men: Peter Parker (the original), Ben Reilly (a Peter Parker clone who filled in for a while), and Miles Morales (the original Spider-Man in an alternative universe who is now in the core Marvel universe). A while back, the villain Dr. Octopus took over Peter Parker’s body, created a big corporate conglomerate, and had that company trademark “Spider-Man.” Parker liquidated the company, but Beyond Corporation bought the assets, including the Spider-Man trademark. Now Beyond has Ben Reilly on its payroll and claims only its Spider-Man can be Spider-Man.
Can it do that? If the real world’s trademark law applied to the world of comic books, would Beyond Corp. win that lawsuit?
Maybe. But – and this is almost always part of a lawyer’s answer to any question – it depends. As in any trademark dispute, the strength of a claim depends on things like:
- Who used the trademark first? Well, Peter Parker obviously. But to be protected a trademark has to be used “in commerce,” and it’s not clear Peter ever did that. He certainly never made any money off being Spider-Man – that’s why he took all those pictures for J. Jonah Jameson. But he did originally create the Spidey persona so he could make money in a wrestling match, so maybe he has the first use claim.
- But even if he had a trademark, Peter never registered it. Registration isn’t required, but it does make protecting a mark easier. It was Parker Industries that registered the “Spider-Man” mark – but it was only able to do that because Dr. Octopus was possessing Peter Parker’s body. Was that legally binding? Honestly, whether hijacking a body counts as fraud on the Trademark Office is a claim that is yet to be tested.
- If we assume, though, that Parker Industries had a valid trademark, Beyond Corporation’s claim still isn’t clear. Next, there’s the question of whether the trademark was abandoned: The legal analysis gets complicated, but basically if you give up a trademark you can lose your claim to its exclusive use. When Peter Parker liquidated Parker Industries (after getting his body back), there’s a good argument he abandoned the trademark.
- Still, trademarks are property that can be bought and sold, and Beyond Corporation bought the trademark when it bought the other assets of Parker Industries. So could it keep the mark alive? Maybe. The answer may come down to a question of time. If the trademark was unused for 3 years, courts would say that is prima facie proof the mark was abandoned. Did 3 years go by after Peter abandoned the trademark? Impossible to tell because comic books do not recognize the laws of time and space. In the real world, Doc Ock took over Peter’s body in 1999. In comics time, that might have been last week.