She-Hulk, episode 5 is centered around a trademark case! I have been excited to write about this one, and I’ll try to point out certain legal points during the trademark case!
The end of episode 4 ended with Jen Walters/She-Hulk being sued for trademark infringement. Titania has made a skincare, beauty, & wellness line using the name She-Hulk, and asserts that She-Hulk, the person is using the name and confusing consumers. We even get a quick shot of the cover page for the claim!
One important thing to notice is that the She-Hulk term shows a small “TM” next to it. That means it’s not registered! Could it be undergoing registration at the USPTO at this time? Did Titania’s company do this while she was in jail from the incident in episode 1? Who knows.
The other important thing to notice is that Titania’s use of the name She-Hulk is for skin care, beauty, & wellness, while Jen Walters uses She-Hulk as a name for her alter ego. Furthermore, the character is in the legal business. It would make sense that people would not be confused and that these 2 lines of business are not related.
After seeing a billboard showing that Titania is definitely using the name She-Hulk, we cut to Jen’s home, and Ched, (one of Jen’s cousins) barges in with a bunch of boxes of She-Hulk beauty products. He even says that he’s supporting Jen’s business venture! Jen has to clear this up and tell him that those aren’t her products. Ched says, “The way trademark works is, whoever gets there first, gets it.”
Ched is right! In trademark law, if you register before someone else can, you can get it! Also, this is actual consumer confusion right here! Jen/She-Hulk can use this for her case showing that Titania was profiting off of the name recognition of She-Hulk.
Later, at work, She-Hulk has a meeting with her boss, says that she will fix this, but the boss says that she won’t. At least not by herself. She-Hulk gets her own attorney, Mallory Book, who asserts this dynamic for the case. Mallory is the attorney, and She-Hulk is the client.
This is a smart move. Attorneys should have their own attorneys.
She-Hulk asks about Dr. Strange and Thor not registering a trademark in their names, only for Mallory to retort that those are their real names. Since Jen is still going by the name Jen Walters, and not She-Hulk, it’s a bit harder to show that she has embraced the name She-Hulk. Mallory points out that they will need to prove that the She-Hulk name was being used in a professional capacity before Titania’s trademark date, and that Titania is profiting off of She-Hulk’s name recognition.
This is a sound argument. However, the “professional capacity” part does not fully address the two different businesses part that is relevant to trademark law. Titania is in skincare, beauty, & wellness, while She-Hulk the character is in the legal business. Those two markets might not intersect, and may not cause consumer confusion. Dove chocolate and Dove soap both exist. Chocolate candy, and soap are two very different markets.
At the first hearing, both sides go back and forth with their respective arguments. Titania and her lawyer show that Jen was rejecting the name She-Hulk, while Mallory and Jen show that the name She-Hulk was being used. The judge, however, wants to see a pattern of the “personal use” of the name.
Neither side specifies dates, which would be important for this kind of case. That’s the only nitpick I have with their arguments. I also feel like this is turning more into a celebrity name rights kind of argument. Given that the show takes place in California, a celebrity name rights argument is the best place to do that.
Back at the firm, Jen and Mallory encounter one of the firm’s biggest clients, who Jen went on a date with as She-Hulk. This ends up being the crux of the argument, showing that there was a pattern to Jen’s use of the name She-Hulk, professionally and personally, and that she was using it as a part of her identity. A dating profile probably isn’t the best thing, but it helped She-Hulk.
Back in court, both sides produce their arguments. Mallory and Jen call their witnesses (wait, why didn’t Ched appear?) to reinforce Jen’s story and usage of the name She-Hulk, and Mallory and Jen win! Titania has to stop using the name She-Hulk!
Yes, you can register a trademark in a name, but there may be some extra hurdles, such as proving acquired distinctiveness. Some very well known names are trademarks (Calvin Klein, Louis Vuitton)! It is possible, but tricky.
What did you think of the episode or the trademark case?
Thanks for reading!
Assaad Lyn: Attorney At Law | © 2022 