Comic-con Repackaged with Expanded Editorial Content

By Geoffrey Gerber

Back from Comic-con. With comic-book litigation absorbing the majority of my time, it is sometimes easy to forget that not everyone sues to protect their intellectual property rights. Comic-con is a case study in the practicality of IP protection and enforcement. Just walking the exhibition floor, you can locate pirated and bootleg merchandise (just because the TV network or movie studio has not released material on DVD doesn't mean that you can sell a DVD version without obtaining rights).

Individuals and companies that own valuable intellectual property could spend all of their time and resources suing people who attempt to benefit from the goodwill associated with that property. Therefore, they need to pick and choose which thefts, misappropriations, and infringements they will attempt to stop. Sometimes, they will let obvious infringement go. A great example was just two blocks outside the Comic-con door.


Click on images to see full size menu.

Throughout the Gaslamp district around Comic-con, there were restaurants attempting to capitalize on the goodwill associated with the convention and particularly the goodwill the fans associate with their favorite stories and characters. Most restaurants had a small sign in their front window, or near their front door with the Comic-con logo and a polite welcome message from the San Diego Convention and Visitors Bureau. Presumably this was a licensed use of the Comic-con logo. Some went further (either they did not have rights form the Convention and Visitors Bureau to use the sign or they wanted a more direct connection) and they had handwritten chalkboards with comic-book references.

The menu above is the most extreme example I noticed. It mixes copyrighted images with trademark names and characters to promote and market its food for this one weekend event. It clearly targets the convention-goers for whom the intellectual property would have a higher association than the population at large.

Why didn't Marvel, DC, or Lucas put a stop to it? It is not that they didn't know. I saw some folks with logoed shirts that indicated they worked the floor booths for LucasArts walk right by. It is not that there was not enough time. Myself and my fellow Fair Use Bloggers have threatened, sought, or obtained emergency injunctive relief to stop event-related infringements on a number of occasions. It is not that the dedicated comic-book aficionado would already know that Human Torch and Thing are Marvel characters, Batman and Batgirl are DC, and Yoda and Imperial Stormtroopers are Lucas Arts. (In fact a give away that this is unlicensed use is the failure to include a notice of copyright and trademark ownership for each of the characters used.)

This type of use often goes unchallenged because the publicity associated with an enforcement action may be more damaging to the owner's goodwill than the erosion of their IP over the course of one week. However, just because pragmatism may cause them to let it go this time, do not believe that more extended or more high-profile use will be allowed. See DC Comics v. Kryptonite Corp., 336 F. Supp.2d 324 (S.D. N.Y. 2004) (KRYPTONITE for bike locks); DC Comics, Inc. v. Powers, 482 F. Supp. 494 (S.D. N.Y. 1979) (DAILY PLANET for store); DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24 (2nd Cir. 1982) (BATCAVE for store); DC Comics Inc. v. Unlimited Monkey Business, Inc., 598 F. Supp. 110 (N.D. Georgia 1984) (SUPERMAN and WONDER WOMAN for singing telegrams); DC Comics v. Wella Corp., 34 Fed. Appx. 811 (2nd Cir. 2002) (KRYPTONITE for hair gel); Marvel Entertainment Group, Inc. v. Hawaiian Triathalon Corp., 132 F.R.D. 143 (S.D. N.Y. 1990) (IRON MAN for triathlon); Marvel Entertainment Group, Inc. v. Young Astronaut Council, 747 F. Supp. 945 (S.D. N.Y. 1990) (YOUNG ASTRONAUT COUNCIL for charitable organization).

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