The word (not trade mark) “Superhero” was first used in 1917, to refer to “a public figure of great accomplishments”. Meaning, back then a “Superhero” was nothing more than a “human superior than its lot”. Probably the first fictional character to be called a “Superhero” was Doc Savage. But he too was nothing more than a more intelligent homo sapien when compared to his genre. During the 1930s the word “Superhero” started denoting humans bearing super powers, i.e., something not expected from a human with average metabolism. Ben Cooper Inc., was the first to register the word “Superhero” for the product “costumes”, in 1967. In 1972, Mego Corporation tried to register “World’s Greatest Superheroes” for “toys”, but was sued by Ben Cooper Inc.
The question arises that whether “Superhero” appears to be generic in nature. When we talk about a mark being generic, the first example comes that of “Xerox”. A trademark is generally supposed to denote the origin of a product. The moment it denotes only the product, the entire purpose of a trademark I defeated. Just like Xerox was supposed to indicate the manufacturers of “photocopying machine” but ended up being a synonym for the product itself, thereby failing its purpose.
However, the aforesaid denigration came into existence as a fruit from the minds of the consumers and general public. But the question lies that what happens when the manufacturers itself fails to retain the purpose of their trademark. When we try to quantify the mount of dilution in this case, we realize that neither DC nor Marvel (the superhero creators) have not been able to understand the entire concept of trade-marking their creation. There are various instances wherein the creators have used their mark to denote their products and not otherwise.
Therefore, it is imperative that trade mark officers take up the responsibility that competitors haven’t. There is a need for registration officers to scrutinize an applicant’s mark in a comprehensive manner, because otherwise, we have seen how a registered mark can be misused. Even after registration, when the companies have to revive their trademarks, reviewers need to assess the possibilities and probabilities if any to test the extent by which a mark may have become a generic one upon usage. If the US trade mark office had done that in 2006, the Superhero creators might not be having their trade mark today.