Thursday, April 7, 2011

Can We Name Our Non-Superman Movie After Superman Villain?

Dear Rich: I'm stumped here. I'm doing a title search for a client and their film is the name of a superhero villain in the Superman series and has nothing to do with this superhero. Is this kosher? We can't tell you whether you will violate Jewish dietary laws, but we can tell you that you may trigger a battle over intellectual property and free speech laws. Most likely your use will be permitted under first amendment grounds -- assuming that consumers are not likely to associate your film with the Superman franchise. If Superman's owners believe consumers will be confused or that their mark will be diluted-- in other words, you're causing their franchise to lose value -- they'll sue. (Superman's legal posse is not shy about litigating; they have gone after everything from reversionary rights to kryptonite).  These battles between First Amendment and trademark rights can be expensive. Mattel battled to keep Barbi's name out of a pop song (and lost) and Dairy Queen battled to keep the name out of the title of a movie about beauty queens (and won). The issue is discussed at length in this article (subscription needed). So, even though the law might favor your right to use the name, your film's insurers and backers may not want to risk the distraction of a legal battle.