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I have heard that the word 'superhero' is trademarked by marvel and DC and thus we can't use superhero as part of the name of a game we develop. But I wonder do they also have exclusibe rights to all the names of their super hero characters?

For example will people get in trouble if they name their games 'premagneto', 'superwolverine', 'exbeyonder' or 'the cyclop'?

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  • \$\begingroup\$ Trademarks, Patents, etc. don't actually protect anything from anyone; they only provide a recourse to the owner AFTER the ideas have already been stolen. In other words, DC cannot stop you from integrating their characters into your game. They CAN, however, stop you from SELLING your game if you haven't paid any astronomical licensing fees due. Regardless of whether they "can" protect certain ideas or not, you will be sued with the assumption that they "can", knowing that you are unable to afford the battle. They win by default and you become homeless. \$\endgroup\$ – Jon Feb 7 '16 at 17:59
  • \$\begingroup\$ en.wikipedia.org/wiki/Fair_use - Even if you make every effort to fully comply with everything listed, you will be sued, just in case, and you still can't afford it. You'll have better chances of them being cooperative if you avoid canonical catastrophe's - i.e. a main character permanently dying - because they would, then, have to honor your plot-line, rather than you honoring theirs. Instead, focus on a side-/back-story, or dramatizing gaps within the existing canonical arc(s). i.e. They might be more willing if your game fills in the gap between Movie1 and Movie2. \$\endgroup\$ – Jon Feb 7 '16 at 18:12
  • \$\begingroup\$ I would like to clarify, I am not trying to incorporate their characters into my games, I would like to create all my own characters, but for the title of the game, I was thinking about using "Beyonder" since I like the word "beyond" and one of my favourite bands is called "Beyond", then I realized there is a marvel char called "Beyonder" so I wonder if I could still somehow used it by say adding the ex in front of it. I found it absurd they even own their rights to character names, it doesn't take a genius to add "er" to common words. But yeah, should prolly be safe than sorry. \$\endgroup\$ – KubiK888 Feb 7 '16 at 21:22
  • \$\begingroup\$ Since your creation will only have the name of their character and not their associated powers, costume, backstory, universe, etc., you are most likely protected by factor 3. Also, you are not trying to incorporate their character into your story (as a direct substitute for their story) and are likely protected by factor 4. Factor 4 also suggests that DC would have to provide evidence of actual, significant, damages their franchise suffered due to your use of their character's name. \$\endgroup\$ – Jon Feb 7 '16 at 23:12
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Usual disclaimer: I am not a lawyer and in this site questions about these issues have to be always taken as ideas, thoughts or experiences, never as technical advice.

That said, first of all, certainly words in themselves are not trademarked per se. I very much doubt that the word "superhero" or its variants could even be trademarked. And even if they were, I very much doubt that such trademarking would make any sense in any judicial dispute.

Second, however, yes, character names can be and often are trademarked. For instance, in a quick search, you can find an entry related to Marvel's Cyclops or Marvel's Magneto. And, to be honest, even if they didn't trademark their characters, they would still have a possible claim over their names - you own the rights over the things you create even without registering them.

Sure, if you take the name of a character and change it enough, you might be safe from issues regarding the trademark of the original name. The practical problem is how much is "enough". It is something that can't be determined a priori. Therefore, there is always risk.

Of course, some big companies only bother going after big enough contenders, i.e. they won't pay much attention until your games are successful enough to get into their radars. Others, however, are pretty strict and tend to cause trouble even for the smaller unknown developers, or even for modders and fans. Nintendo, for instance, has already took down a fan-made non-profit learning project: http://ca.ign.com/articles/2015/03/31/nintendo-takes-down-super-mario-64-hd-fan-project. It means that, again, there is risk.

Whether those risks are worth taking, is something that you and only you can decide. But those risks are, often, enough of a burden. Specially for independent developers. You have to consider that the problem of being sued is not only loosing, but even before that, wasting time and resources on the matter. Time and resources that are, of course, far more costly to you than to big companies like Marvel and DC.

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To search for trademarks, use the website of the United States Patent and Trademark Office. But you can assume that the name of every major comic book character and villain is trademarked. Corporations like Marvel and DC which make vast amounts of money by licensing their intellectual property are very thorough in this regard.

Having almost the same name can already be an infringement when there is reason to believe someone might mistake your character for the trademarked one. I am not a lawyer, so I can not give you an estimate how likely it would be to get away with either of your examples when in court, but the chance is high that you couldn't afford to defend against a lawsuit to find out, so you should better avoid it.

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  • \$\begingroup\$ Not finding it in the USPTO database doesn't guarantee safe use though. An unregistered trademark may receive protection under the federal Lanham Act and some states follow the 'first use rule' when resolving trademark disputes. \$\endgroup\$ – Pikalek Feb 8 '16 at 2:19
  • \$\begingroup\$ I wonder if I don't like in the US but say in Canada, does the same rule apply? \$\endgroup\$ – KubiK888 Feb 8 '16 at 6:16
  • \$\begingroup\$ @KubiK888 intellectual property rights are very similar all around the world. But when you have more detailed questions, you should rather ask on law.stackexchange.com \$\endgroup\$ – Philipp Feb 8 '16 at 8:26

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