Superbabies Petitions TTAB For Default Judgement Claiming DC/Marvel Failed To Respond Over ‘Superhero’ Trademark Cancellation

Some stories just don’t end the way you expect, and the way this one supposedly might is fairly surprising. Earlier this year, we discussed how the creator of the Superbabies comic, Scott Richold, filed for cancellation for the trademarked term “Super Hero” and several variants, all jointly owned by DC and Marvel with the USPTO. As that post noted, the fact that the term is still trademarked at this point is absurd all on its own.

But when Richold’s company applied for a trademark on his comic series, the idea that DC and/or Marvel could tell him that his application for what would be a fairly unique trademark would result in trademark infringement is bonkers. “Super Hero” and its variants are plainly generic, to the point of being the term for entire genres of film and fiction in a variety of formats.

When Superbabies Ltd. put together its cancellation request for the Trademark Trial & Appeal Board (TTAB), it submitted the filing with all kinds of uses of the term that had gone unpoliced by either DC or Marvel. In fact, the filing even included several instances of employees of DC and Marvel using the term in a way that demonstrates its generic nature.

Now, I figured there was a couple of ways this would play out. The most likely was that DC and Marvel would throw its enormous legal warchest at Superbabies Ltd. to try, and perhaps succeed, in making this all go away due to the cost of the fight. The second, far less likely outcome would have been DC and Marvel admitting the mark is too generic to be worth fighting over and simply agreeing to rescind those marks.

What I never expected was for DC and Marvel to simply fail to respond to the TTAB. But that’s what Superbabies Ltd. has indicated happened in its petition for default judgment earlier this month.

Petitioner Superbabies Limited (“Petitioner”) respectfully submits this motion for default judgment. In support of its motion, Petitioner states as follows:

1. On May 14, 2024, Petitioner filed its cancellation petition in this matter.
2. Under the Notice of Institution, Respondents (DC Comics and Marvel Characters, Inc.) were required to answer the petition by June 24, 2024. 2 TTABVUE 3.
3. On June 14, 2024, Respondents filed a motion to extend their Time to Answer to July 24, 2024. 4 TTABVUE. The motion was granted. 5 TTABVUE.
4. On June 20, 2024, counsel for Respondents entered a notice of appearance. 6 TTABVUE.
5. As of the Date of this Motion, Respondents have not filed an Answer to the Petition, nor have they requested any additional extensions of time to respond. Respondents have defaulted.

When I saw this and then conferred with our own Cathy Gellis, I had to go to the USPTO site and look up the cancellation case myself. I’m still wondering if there isn’t some sort of mistake here, or miscommunication, or failure to log a document, but the history of documents in this case does not show any response from DC or Marvel after the request for extended time.

If that’s how this story ends, it’s nearly as incredible as any super hero comic that either company has produced. And I would imagine that there are some executives very unhappy with their legal counsel. Though, also, even if there’s a default judgement, Marvel & DC could likely re-engage. But for now, it appears they have not.

And if it frees the obviously generic term “Super Hero” from the restrictions of trademark law, well, perhaps this isn’t the outcome we expected, but it’s the outcome we deserve.