Remember two years ago, when Marvel, creator of Spider-Man, X-Men, and a bunch of other comic book characters, sued NCSoft, maker of the MMPORPG City of Heroes? Marvel alleged that players of City of Heroes were creating superheroes that were infringingly close to characters copyrighted by Marvel. The case was thrown out when it was discovered that Marvel was creating Marvel-like characters and then complaining that the game allowed the creation of such characters. Since no actual damage could be demonstrated, the case was thrown out.

Now, Marvel wants, in the words of Cory Doctorow, to continue putting ideas "in a lock-box to which it will control the key." In 1981, Marvel and DC Comics jointly filed to trademark the word "super hero." If this isn't the most asinine thing I've read so far this year, then it's pretty close. No one has really discovered this fact until now, when Marvel's press releases for a "science of super heroes" exhibit at the California Science Museum in Los Angeles contained the ubiquitous "TM" after the word "super heroes."

A Los Angeles Times op-ed points out why this is a terrible idea:

In trademark law, the more unusual a term, the more it qualifies for protection. We would have no quarrel with Marvel and DC had they called their superheroes "actosapiens," then trademarked that. But purely generic terms aren't entitled to protection, at least in theory. The reason is simple: Trademarks restrict speech, and to put widely used terms under private control is an assault on our language.

Once a trademark is granted, it remains in effect until someone proves to the feds that the term has lost its association with a specific brand, as happened with "cellophane" and "linoleum." That's why Johnson & Johnson sells "Band-Aid brand adhesive bandages," not simply Band-Aids(TM).

Why is a word trademarked? So that people will associate a particular word with a particular company or product and buy more of that product. This gives the company incentive to create more of this product, which is theoretically good for everyone.

Marvel is doing no such thing. It is using its legal leverage to shut out competitors:

The government's action means that any company wishing to market a comic book, graphic novel or related item with any variation of "super hero" in the name or title must get permission from Marvel and DC. Dan Taylor, the Costa Mesa-based creator of the "Super Hero Happy Hour" comic, learned about this absurdity two years ago when he was contacted by lawyers for Marvel and DC, prompting him to rename his series to the more pedestrian "Hero Happy Hour."

Patents, trademarks, and copyrights are granted to give an artist an incentive to continue producing art or inventions by giving him a monopoly on producing that art or those inventions. But corporations see copyrights, patents, and trademarks as doing something else: instead of innovating or competing in the "free market" that these corporations love to talk about, they get the government to step in and shut down their competition for them.

Take Lexmark, for example. Lexmark charges way too much for toner cartridges. So, another company steps in and takes advantage of Lexmark's poor business model and offers to refill toner cartridges for cheaper than Lexmark would. In a free market economy, Lexmark would have to lower the price of its toner cartridges if it wanted to stay competitive. But in a United States where ridiculous laws like the DMCA exist, Lexmark can call up the government and order its competition to shut down. How? Because the other company is infringing on a copyright held by Lexmark regarding a piece of software in the toner cartridge. Instead of sucking it up and changing an old-and-busted business model, Lexmark uses the law to stifle competition and continues using an old-and-busted business model. It's easier and cheaper to stifle than to innovate.

So it goes with Marvel and DC Comics. If you want superheroes, you have to come to us. Anything else isn't the same. The theory is that a comic without a "super hero" is somehow a comic of lesser quality; since only Marvel and DC can legally use the word "super hero," then anything that is not Marvel or DC is somehow of lesser quality. This is a horrible misuse of trademarks and I hope that someone takes Marvel and DC to court to shut down this blatant disregard for art, the law, and the public domain.