Monday, July 15, 2019

Plasm v. Plasmer


            I recently ran across an older trademark case that’s worth mentioning. The case is Marvel Comics v. Defiant.[1]
            The case pitted Marvel Comics against a new comic book company founded by former Marvel Editor-in-Chief Jim Shooter. Shooter’s new comic book company, Defiant, was going to launch a new comic book called Plasm. Marvel objected to the title of the new book because they had a Marvel UK comic titled Plasmer. Marvel’s lawyers told Defiant they needed to change the title of the book. They also said that if Defiant provided a list of titles, Marvel would approve one.[2] Defiant provided a list, but they never received a reply from Marvel. So, they went ahead and published the comic with one of the names on the list, Warriors of Plasm.[3]  
            Marvel sued Defiant in an attempt to halt publication of the book by seeking a preliminary injunction. Marvel had filed for a trademark application for Plasmer in the U.K., and its U.S. trademark registration was still pending. Both parties filed arguments in an attempt to have the case dismissed early. Defiant argued the case should be dismissed because Marvel did not have trademark rights in the word Plasmer. The court did an intriguing analysis of what type of pre-sale use can help establish trademark priority, and, using a standard appropriate for evaluating a motion to dismiss, it ultimately concluded Marvel had established enough rights to avoid a motion to dismiss the case.[4] The court also found it inappropriate to grant Marvel’s declaratory judgment due to the pending nature of their trademark application, which would impact Defiant’s liability, and the upcoming trial.[5] Eventually, the court denied Marvel’s preliminary injunction finding there was “little likelihood of confusion between the two.”[6] The case was dismissed shortly thereafter.
The aftermath of the litigation, however, was pronounced. According to Shooter, even though they won, the litigation cost them $300,000.[7] Defiant also lost out on a million dollar toy deal with Mattel because they could not afford to indemnify Mattel against future lawsuits, which Mattel now required because of the Plasmer lawsuit.[8] As a new company, Defiant had limited resources, and the lawsuit took a toll.[9] After only starting publishing in 1992, Defiant closed down in 1995.
Marvel’s U.S. trademark application for Plasmer was never issued.


[1] Marvel Comics Limited v. Defiant, a division of Enlightened Entertainment Ltd., 837 F.Supp. 546 (1993).
[2] https://www.cbr.com/jim-shooter-interview-part-2/
[3] https://www.cbr.com/jim-shooter-interview-part-2/
[4] Marvel Comics Limited v. Defiant, a division of Enlightened Entertainment Ltd., 837 F.Supp. 546, 549 (1993).
[5] Marvel Comics Limited v. Defiant, a division of Enlightened Entertainment Ltd., 837 F.Supp. 546, 550 (1993).
[6] The Comics Journal, No. 163, Pg. 14(Nov. 1993).
[7] https://www.cbr.com/jim-shooter-interview-part-2/
[8] https://www.cbr.com/jim-shooter-interview-part-2/
[9] https://www.cbr.com/jim-shooter-interview-part-2/; The Comics Journal, No. 163, Pg. 14(Nov. 1993).

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