As of July 11th, Todd McFarlane Productions, Inc. has filed (again) for a registered trademark on "Miracleman." The filing appeared in the USPTO online trademark database (TESS) on July 25th. TESS can be accessed via this URL: http://www.uspto.gov/web/menu/tm.html

TMP has filed in three international classes (016, 025, & 028) seeking coverage for "comic books and posters", "athletic shirts, t-shirts, caps and jackets", and "action figures and accessories". These are essentially the same goods and services that TMP sought to cover in their now abandoned 1997 filing.

I find it interesting that TMP, Inc. filed the very next day after I posted my original "Miracleman Trademark Status" article to rec.arts.comics.misc and the comicon.com message boards. For McFarlane's sake, I hope really isn't depending on Usenet and message board posts for legal advice [img]/resources/ubb/smile.gif[/img]

Below is the entry from the USPTO online trademark database:

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Word Mark
MIRACLEMAN

Goods and Services
IC 016. US 002 005 022 023 029 037 038 050. G & S: PRINTED MATTER, NAMELY, COMIC BOOKS AND POSTERS

IC 025. US 022 039. G & S: CLOTHING, NAMELY, SHIRTS, ATHLETIC SHIRTS, T-SHIRTS, CAPS AND JACKETS

IC 028. US 022 023 038 050. G & S: TOYS, NAMELY, ACTION FIGURES AND ACCESSORIES THEREFORE

Mark Drawing Code
(1) TYPED DRAWING

Serial Number
76283194

Filing Date
July 11, 2001

Filed ITU
FILED AS ITU

Owner
(APPLICANT) Todd McFarlane Productions, Inc. CORPORATION ARIZONA. 12240 South Honah Lee Court, Phoenix ARIZONA 85044

Attorney of Record
Penny R. Slicer

Type of Mark
TRADEMARK

Register
PRINCIPAL

Live/Dead Indicator
LIVE
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Checking on the status of the application reveals that TMP's Attorney of Record for this filing is:

Penny R. Slicer
Stinson, Mag & Fizzell, P.C.
PO Box 419251
Kansas City, MO 64141-6251

Interesting times, indeed...


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Carl Henderson
carl.henderson@airmail.net

[This message has been edited by Carl_Henderson (edited 07-28-2001).]

Penny Slicer? Please tell me that's not her real name.

Any idea if the USPTO takes public comments on these matters?

They do have a contact listing on the site listed above. I just mailed them a letter questioning them about what type of research they do before approving an application and letting them know that there is a dispute about the ownership of the Miracleman property. I hope others will contact them too. Clearly if they approve TMP's application it would be both a moral and legal mistake.

I believe an opposition could be filed (by an interested party, usually) and there there would be a hearing. This would cost far less than a regular lawsuit and the results might be very interesting.

JM

Interesting. Make that fascinating. Thanks Carl for the extremely informative post. Presumably someone will be bringing this to Neil's attention, I wonder what the process the USPTO office follows is? Do they assume that Todd owns the material unless they hear differently? Do they do any digging into something brought before them? How would one communicate to them that the ownership of something brought to them was highly contested?

This is the kind of thing that restores my hope in internet discussion of these kind of issues, doubtless Todd would prefer this was being done quietly and without any input by the public, Carl's hard work has assured a certain amount of transparency to the precedings.

This, to my mind is the essense of journalism: Important facts, facts that a powerful person would rather not be known have been brought before the audience most affected. Kudos.

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Nothing tops the simple joy of a monkey knife fight.

I just read this off of Neil's journal entries from neilgaiman.com. It might stir the pot up considerably. If I am not mistaken, the films in question are the films of the Eclipse MiracleMan issues. I guess we shall wait and see.---skylion

Saturday, July 28, 2001
"Hurrah for Wizard magazine. A few months ago they published that some film that I had had in my basement for some years was irretrievably lost. (The people who sent the film to me told them this, for their own reasons.) This month I was told that Wizard had published an update -- that there was film in my basement, but it was in unusable condition -- which was an amazing thing for them to know, since, as far as I can tell, the boxes haven't been opened since they were owned by Eclipse, pre-bankruptcy.

So I thought I'd go down to the basement and look.


Not only was it not at all damaged, old or unusable (because my basement is the other half of my library, and shares drainage tiles and moisture control and sensible things like that) but there was an awful lot more of it than I had thought there would be from the labels on the boxes, including some things I'd thought gone for good -- which will, I think, soon be seeing print from a delightully unexpected source.


Which is enormously fun, and I owe it all to the responsible journalism of Wizard magazine."

...I am bubbling with excitment over what will be happening next.--skylion



[This message has been edited by skylion (edited 07-28-2001).]

The Trademark website listed above also states that you can expect a reply to your email question within 7 working days.

Neil Gaiman:
"Which is enormously fun, and I owe it all to the responsible journalism of Wizard magazine."

...and causing me to unexpectedly state in public for what may be the first and only time in bold and italics for proper effect:

Yay Wizard!!!!

God, now we need one of those Budwiser commercials..."Here's to you Mr. irresponsible Wizard comic journalist."

Keep in mind that when the US Patent and Trademark Office "accept" an application for a trademark, it means nothing more than the right paperwork was mailed (or submitted via their website) along with the $325.00 fee (per class). All the investigation of whether the mark can be awarded to the applicant takes place later--often up to six months to a year. Below is a brief outline of the process.

Registration is a process where someone who uses something as a trademark (or wants to use something as one) applies (via a written application with examples of the mark) to the US Trademark and Patents Office (USPTO) for a federal grant of exclusive rights to that mark.

Registration requires that one either a) use the mark in commerce, or b) intend to use the mark in commerce within a set time period--and then provide proof to the USPTO that one has actually begun to use the mark in commerce (this requirement killed TMP's last attempt to register the "Miracleman" mark back in 1997). Registration also requires a $325 fee for each international class of goods and services that one's mark will cover.

Before a federal trademark reqistration is granted, the USPTO's lawyers will investigate to see if your proposed mark conflicts with any existing registratered trademarks. If there is a problem, the USPTO may require you to modify your mark, disclaim some rights under that mark, make changes to your goods and services that the mark covers, or they may reject your mark altogether. Any such actions by the USPTO can be appealed.

Finally, before the registration process is complete, the mark must be published for opposition--a thirty day period where anyone who believes the proposed mark conflicts with, or dilutes, their rights may file an application to oppose granting the mark.

(For more detailed information go to the USPTO web site and read the "Basic Facts About Trademarks" publication (at http://www.uspto.gov/web/offices/tac/doc/basic/ )

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Carl Henderson
carl.henderson@airmail.net

[This message has been edited by Carl_Henderson (edited 07-29-2001).]

[This message has been edited by Carl_Henderson (edited 07-29-2001).]