What She-Hulk Got Wrong about US Trademark Law

She-Hulk Got Wrong

There were a few things that the Marvel Disney+ television show She-Hulk got wrong about US trademark law.

It is not unusual for a TV show about lawyers to misstep over legal doctrine or procedure. Truncating trial timelines for dramatic effect is often necessary for television script writers to stuff a plot into a 30- or 60-minute timeframe.

She-Hulk: Attorney at Law is no exception. Its focus is a green, super-strong superhero, yes. However, as was the case in most of the She-Hulk comic book iterations (there were a few), it is also the story of a superhero who was a lawyer before gaining super-powers—and who tries her best to continue lawyering afterward.

The TV show takes a comic approach, with She-Hulk often “breaking the fourth wall” to speak directly to you, the viewer. She worries about guy problems, engages in Buffy the Vampire Slayer-like repartee with her legal assistant and BFF (don’t try this in real life, paralegals!), and manages to mostly screw things up left and right.

It’s a mostly fun show, though comic book nerds like yours truly will find much to quibble with. (And that “breaking the fourth wall” thing is pretty old hat.)

That is, this Article is about what She-Hulk got wrong about US trademark law—and not the law of comic books. Or the law of what makes a TV show suck or not.

As noted above, lawyer TV shows make a lot of mistakes.

She-Hulk, on the other hand, comes dangerously close to seriously misinforming the US viewing public about how US trademark law works—and what they should expect when registering a trademark.

Clarification is necessary. Excelsior!

What She-Hulk Got Wrong: All Lawyers Don’t Practice All Types of Law

It’s not really fair to pick on She-Hulk for this one because A) it’s not a trademark-specific complaint; and B) every TV show ever about lawyers does the same thing. However, we will anyway.

Jennifer Walters, AKA She-Hulk, begins the series as a criminal prosecutor. She then quickly leapfrogs into civil corporate law without picking up a book or taking even the dumbest CLE course (and they’re mostly all pretty dumb). She then, by Episode 3, is drifting into trade secrets and intellectual property law. Again, with no further training, mentoring, or self-education involved.

Next, she’ll be filing a corporate Chapter 11 bankruptcy or (fruitlessly) defending George W. Bush at the International Criminal Court in The Hague.

The point is this: real lawyers specialize. General practice lawyers may do a little criminal defense combined with some estate planning or divorce work … But they aren’t jumping into a USPTO TTAB trademark cancellation proceeding or serious Federal litigation in the corporate arena, I promise you. Your brother-in-law who does mostly real estate law is not going to defend a criminal defendant with the death penalty on the line.

If you want to file bankruptcy, you hire a Michigan bankruptcy lawyer.

If you want to register a US trademark, you hire a Michigan trademark lawyer.

You want experience in that particular legal area, in those particular legal forums and court systems, with knowledge of that particular procedure, process, and body of applicable case-law.

What She-Hulk Got Wrong: “But She Trademarked It First!”

After defeating another super-strong, female super-human named Titania (in court), She-Hulk is, at the end of an episode, greeted at her front door process server. Titania has registered the name SHE-HULK as a trademark and is suing She-Hulk/Jennifer Walters for infringement.

“But that’s my name!” she cries (the first of many not-very-lawyerly exclamations by our hero).

“Well, she trademarked it first!” the process server replies, merrily.

“Oh, is that how it works, Your Honor?” Jennifer/She-Hulk says, slamming the door in his face.

The episode ended there, leaving me hoping that She-Hulk’s rhetorical jab at the process server was pure sarcasm and that she knew better than he did about “how trademark works.”

This hope did not pan out, however.

First, a note: the word “trademark” is not a verb. You do not “trademark” something … You register a business name, product name, logo, or other indicator of the source of a product or service transacted in interstate commerce as a trademark.

It’s a noun.

That said, what the process server said was wrong. And She-Hulk does not, at any point in the next few episodes, assert this point, alas.

The US is not, a “first to file jurisdiction.” That is, in the United States, the right to ownership of a trademark does not simply belong to the person who races to quickly first a trademark registration application first.

Instead, the US is a “first to use” jurisdiction. This means that whoever is the first to use a business name, product name, or logo in association with the transaction of a product or service in interstate commerce (i.e., across state lines) has the right to the trademark’s registration.

This point of confusion causes a lot of unregistrable trademark applications to be filed with the US Patent and Trademark Office. Particularly by those attempting to DIY the registration and file it without the assistance of a good trademark registration attorney.

You must use a mark in commerce and be using it longer than anyone else to have the right to the trademark’s registration under US law.

To learn more about the use in commerce requirements of US trademark registration click here.

What She-Hulk Got Wrong: Titania’s Use in Association with Cosmetic Products

Was it then the case that Titania did not have use in commerce?

She definitely did! Titania used the name “She-Hulk” in association with cosmetic and beauty products. She marketed and sold her “She-Hulk” body sprays, perfumes, and other products through retail outlets in a massive online, billboard, and TV advertising blitz that seemed to blanket the airwaves, in the show.

Presuming that she sold one or two bottles of “She-Hulk” body mist (or whatever) to someone outside of the State of California, in which the TV show is set, Titania has use in commerce.

It is important to remember that the same name can be registered by two different people for totally different products or services, so long as the USPTO (and the other registrant) does not believe that there is any likelihood of consumer confusion.

Trademark registration applications are filed (and trademark registered) in association with the specific goods or services being sold with that name or logo.

The many different types of products or services that can be sold are sorted into 45 different International Classes, or ICs.

Titania’s SHE-HULK trademark registration application would have been filed in Class 3, for cosmetic products. It may also have been filed in Class 35, for retail or wholesale “store services,” or in other classes.

If Jennifer/She-Hulk filed her own trademark registration application, it would likely not be in these same ICs. The question of whether, as a sort of part-time superhero, she is using the SHE-HULK mark in commerce at all would arise. But, if she did, it might be for Class 45 for “Personal, Legal, and Social” Services (crime fighting), or in Class 41 for “Entertainment Services,” if she makes personal appearances, signing autographs at the Motor City Comic Con, etcetera.

The bottom line is that, if consumers are not confused into think that Jennifer Walters is the source of Titania’s cosmetic products, the USPTO’s Trademark Trial and Appellate Board (TTAB) or a Federal judge might allow both marks to register.

Jennifer would, to file suit, first need to file her own trademark registration application—and then move to cancel Titania’s on the ground of consumer confusion.

It seems unlikely that Jennifer/She-Hulk could prove her own use, at least thus far in the show.

What She-Hulk Got Wrong: Titania’s Bad Faith

This does not mean that She-Hulk doesn’t have a case. She could sue in state court based on Titania’s breach of She-Hulk’s right of publicity.

This is not a trademark-related cause of action, but most states do have laws on the books aimed at preventing third parties from misusing the names or appearances or hallmarks of identify of celebrities or others.

She-Hulk could also sue in state court to enjoin Titania’s use of the SHE-HULK name based on a common law or statement trademark right—but the remedies here would be limited.

It is unclear exactly on what grounds She-Hulk is suing Titania in the TV show, or in which court.

What She-Hulk Got Wrong: What Court Was That??

If you want a registered trademark canceled, the forum for this action is the USPTO TTAB. A petition for cancellation is essentially a lawsuit filed within this very specific administrative adjudication forum alleging that a registered trademark should be canceled based upon at least 1 of several specific grounds.

These disputes take well over a year to resolve, when a response is filed to the initial complaint, and frequently do not require anyone to show up to an actual courtroom.

An infringement lawsuit would usually be filed in Federal Court, on the other hand.

Only a lawsuit on common law trademark grounds would be filed in state court.

In the She-Hulk TV show, Jennifer responds to Titania’s lawsuit (I guess she does, anyway: it isn’t clear) and files some sort of counter-suit in … some court. As luck would have it, it’s the same court in which she appeared in a prior episode, representing Wong of Dr. Strange fame in his attempt to stop an ex-pupil from using magic.

It seems like a State court. Or it could be a Federal court.

Hard to say. It’s a generic TV court, and few, if any, actual legal arguments are made. Video clips are shown of She-Hulk saying this or saying that in attempt to demonstrate that she does or does not actually use the name SHE-HULK personally. Not use in commerce arguments of any sort.

The judge finds for Jennifer, ordering that all of Titania’s cosmetics inventory be destroyed. Because of a video clip. That’s the whole hearing.

As TV “trials” go, She-Hulk got this pretty wrong.

What She-Hulk Got Wrong: You Can’t Register a Trademark Overnight

An important point, also, is that you cannot register a trademark overnight. This is essentially what Titania does. Clearly, only a matter of days, if that, elapses between episodes of the show. Yet, Titania registers her SHE-HULK mark between 2 episodes only.

In reality, it takes a year or more, as of this writing, to fully register a trademark. At this time, it takes at least 6 months for a USPTO Examiner to conduct even an initial review of a trademark registration application.

This is one of those time-truncation “for dramatic purposes” issues noted at the beginning of this Article. It is probably forgivable, but it’s also important to understand that trademark registration is not a quick-and-easy form-filing that is done in one day and without any legwork by you or your Michigan trademark lawyer.

It is an adversarial process that can result in litigation both with the USPTO and with third parties.

Thinking otherwise is what causes people to try to DIY registration applications or to hire low-cost website form-filing services instead of real trademark attorneys.

What She-Hulk Got Wrong: The Bottom Line

The bottom line is that what She-Hulk got wrong was a lot. Yet it’s all in fun. Not to be taken too seriously. Unless you happen to take the “law” as described on the show seriously, that is.

If you do, you’ll be steered in one wrong direction or another. If you are considering registering a trademark, you’re better off consulting a Michigan trademark attorney to discuss your options.

Let She-Hulk handle Dr. Doom or The Wrecker.

Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting entrepreneurs, solopreneurs, artists, musicians, start-ups, and larger enterprises with robust intellectual property portfolios, and others in all industries with trademark registrationtrademark renewaltrademark monitoring, and Office Action refusal response matters.

Additionally, we also have nearly 20 years of experience representing Michigan bankruptcy clients.

We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration success.

Click the “Register Your Trademark” button below to schedule your initial consultation and to begin your brand protection journey.

 

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