I’ve seen an interesting discussion lately online regarding the Punisher logo, and its use by police departments. As the Black Lives Matter protests continue in the wake of George Floyd’s death and shine a light on aggressive police tactics and use of lethal force, there has been a call for Marvel to prevent police officers from wearing the Punisher logo. In particular, Comic Book Resources ran an article highlighting some of the difficulties Marvel would face in trying to use trademark law to prevent police officer usage of the logo, and AIPT ran an article highlighting websites that sell unlicensed Punisher police-themed goods. Both of these articles raise interesting points, and when read together, show the difficulties in enforcing intellectual property rights.
For those unaware, the Punisher is a Marvel character introduced in The Amazing Spider-Man 129 and was created by Gerry Conway, John Romita Sr. and Ross Andru. He was originally introduced as a Spider-Man antagonist, but quickly gained in popularity. After witnessing his family murdered by the mob, he becomes a vigilante who frequently kills criminals. At best, the character can be called a vigilante anti-hero; at worst, the character can be called a serial killer.
Despite this, the character and his signature skull logo remain popular, and there are many instances of police and military wearing the logo. The reason people are calling on Marvel to do something is because police officers’ duty is to serve and protect. Wearing the Punisher logo conveys a troubling message.
As was mentioned in the Comic Book Resources article, trademark law primarily protects against consumer confusion in commercial usage. If the individual police officers are not selling merchandise bearing the Punisher logo, then Marvel has limited recourse. Marvel would not be successful arguing traditional trademark infringement, and they would have to rely on alternative theories, such as dilution. This theory argues that someone else’s usage of the trademark would harm the value and goodwill of the original trademark owner. However, for personal use, it is harder to argue than if it was adopted by an entire police department. Additionally, the First Amendment provides strong protection against trademark claims where freedom of speech is concerned. While the use is questionable, police officers wearing the logo could be considered an expression of free speech.
Copyright law could also be used to protect the logo, as it is an artistic work. However, once again, copyright law usually focuses on commercial activity, but non-commercial use could be found to be an infringement if it does not qualify for fair use and harms the marketplace for the copyrighted work.
Marvel would face a difficult task in trying to enforce its trademark or copyright rights against individual police officers. However, as noted in the AIPT article, Marvel could remove many unlicensed products from the marketplace that bear the Punisher logo. Manufacturing and selling product that bears the Punisher logo is clearly commercial use.
The question would then focus on whether the products being sold, such as a Punisher logo incorporating a blue line emblematic of police or Blue Lives Matter, would constitute a fair use under copyright law or a form of speech protected by the First Amendment. These are difficult questions to answer, but I believe they would not be. The First Amendment protects many types of speech, but commercially exploiting someone’s copyright or trademark by adding minimal design elements would be unlikely to qualify without a strong speech component.
For example, there was a recent case involving the use of Matt Furie’s Pepe the Frog by Infowars in political posters supporting Donald Trump and using the MAGA slogan. In an initial ruling denying summary judgment, the court stated that Inforwars’ use of the character could not be considered a fair use as a matter of law and would need to be decided by a jury. See Furie v. Infowars, LLC, 401 F.Supp.3d 952 (C.D. Cal. 2019). The case was later settled with Infowars paying Furie $15,000.
Finally, Punisher co-creator Gerry Conway has launched a campaign to “reclaim” the Punisher logo from police and military appropriation. Conway has teamed up with artists of color to create and sell t-shirts bearing the Punisher logo, or similar designs, to raise money for Black Lives Matter. The campaign can be found here: https://www.customink.com/fundraising/black-lives-matter-skulls-for-justice-presented-by-gerry-conway. So far, Marvel has not taken a position on Conway’s campaign, but it could be considered an infringement of Marvel’s intellectual property rights. While I will not go into a detailed analysis of each shirt, the outcome would depend on the creativity involved in the designs and the message they convey. At first glance, I believe many of the designs could qualify for First Amendment protection, but it would be decided on a case-by-case basis. Conway’s campaign will end on June 30.