She-Hulk Says SMASH This Trademark Lawsuit! [Spoilers!]

By Mitchell S. Feller

In Episode 1 of She-Hulk: Attorney at Law (streaming on Disney), attorney Jennifer Walters must stop presenting her case and instead turns into a Hulk and saves the jurors after superhuman Titania bursts into the courtroom.  Several episodes later, Ms. Walters is sued by Titania for trademark infringement.  Titania, it turns out, had launched an entire line of SHE HULK by Titania branded beauty products.  (It’s best not to overthink this.)  She-Hulk needs to make Titania stop and the episode is surprisingly on-point about applicable trademark law.  Without giving away any more of the plot, a real question is raised about whether you can have trademark rights in your or someone else’s name or pseudonym.

A trademark is used to indicate the source of goods and services that are being sold.  A person can generally use their full name (first and last) as a trademark as long as the name is distinctive. On the other hand, if instead of a full name the desired mark is “primarily merely a surname”, trademark protection is available only with proof that the mark has acquired “secondary meaning”.  This requires showing that consumers associate the surname as indicating a specific source of the goods or services, and not simply being a person’s name.   Trademark rights are also awarded to the first commercial user of a mark.   This means that even if your name could be a valid trademark, you cannot use it as a trademark for similar goods/services if someone else is already using the same or a similar name as a trademark in a way where use of the names by both parties would confuse the public about which was the source of the goods or services.  If the earlier mark is not registered, where the mark is being used also needs to be considered since the rights may be limited only to those geographic areas.

Federal registration is not required but provides a number of legal advantages, including the presumption of validity of a trademark.  To get a Federal trademark registration of the name of a living individual, that person must give their consent and this needs to be included with the trademark application.  If the trademark is also the name of the trademark applicant, consent is assumed.  There is an exception for celebrities.  While trademark law normally requires the actual sale of goods/services, the name of a celebrity (live or dead) cannot be used in a way that raises “a false suggestion of connection” where a consumer would assume from the trademark that there was a connection with the celebrity even if the celebrity is not selling anything (other than themselves).

When the trademark is a nickname, a further issue is whether people actually view it as a pseudonym for the person.  For example, “The Rock” is a pseudonym clearly associated with Dwayne Johnson.  He would, therefore, in many cases, have strong grounds to object to a third party using THE ROCK as a trademark without his permission.

Getting back to She-Hulk, there is no suggestion in the episode that Ms. Walters was selling any goods or services using the She-Hulk mark before Titania released her product line so she cannot claim prior trademark use.  (The law firm employing She-Hulk as the “face of [their] superhuman law division” might argue prior use if they were using She-Hulk as a brand for legal services.  Even in the Marvel universe, however, consumers would be unlikely to confuse legal services with beauty products and so this argument probably would fail.)  This leaves as the ultimate questions: (a) whether She-Hulk is a celebrity, and (b) whether the public views “She-Hulk” as an actual name or as a pseudonym that they associate with Ms. Walters at least when she is in her Hulk form.  I won’t spoil the outcome although you can probably guess how it turns out.

Whether or not you have superpowers, if you are considering using a name or nickname as a trademark, be sure to talk to an experienced trademark attorney first to make sure your rights are protected.