Disney To Maker Of Hulk Power Tools: You Wouldn't Like Us When We're Angry...

from the trademarking-hulk dept

Mon, Oct 25th 2010 5:40pm — Mike Masnick

Marvel, now owned by Disney, apparently is not a fan of Airbase Industries introducing a new line of power tools under the brand name "Hulk." The USPTO allowed Airbase to register its own trademark, but Disney started an opposition proceeding. Of course, then Airbase came out with its first "Hulk"-branded powertool... and it's green. That made Disney angry. So, Disney has now filed a lawsuit, arguing that the combination of the name, the logo and the green color might lead to some confusion. The green color does seem a bit over the top, but a trademark is really only supposed to cover the areas of business that the mark is being used in, and I don't recall Disney power tools anywhere on the market...

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Filed Under: hulk, powertools, trademark
Companies: airbase, disney, marvel

41 Comments

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ChurchHatesTucker (profile), 25 Oct 2010 @ 5:46pm

That's so sixties, Mike
Trademark covers any area that a company might conceivably get involved in, and has for decades now.

At least for the ones that have teams of lawyers on staff.
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JEDIDIAH, 25 Oct 2010 @ 5:51pm

Go back to the old school Hulk for inspiration.
Make the tools grey. Hulk was originally grey. It could be a great "fan" in joke.
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Pixelation, 25 Oct 2010 @ 6:00pm

Endorsement that wouldn't help
Why the hell would it make any difference if Marvel was endorsing these tools? As someone who uses tools a lot, their endorsement wouldn't mean squat. In fact I might forgo buying them ever if they endorsed these tools. Get real.
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Anonymous Coward, 25 Oct 2010 @ 6:09pm

Re: Endorsement that wouldn't help
"I might forgo [sic] buying them if they endorsed these tools."

But that's exactly the point of trademark.
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abc gum, 25 Oct 2010 @ 6:17pm

"the combination of the name, the logo and the green color might lead to some confusion"

Oh! Help me Disney, I'm soooo confused.
I think this powertool is ummmm - what the hell is it?
Oh yeah, it a movie ... no wait,
it's a comic book, ahhh no it's not.
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Anonymous Coward, 25 Oct 2010 @ 6:18pm

And what happens when Disney wants to come out with a toy tool set, or "Hulk" wants to come out with a toy tool set.
This is actually very common.
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James Carmichael, 25 Oct 2010 @ 6:28pm

Not cool you guys
I'm going to be the devil's advocate for a second: look at the picture of the thing. I mean, come on. They clearly just ripped off the whole Hulk thing. I'm sure not many people will actually suspect it's made by Disney, and so legally they may be in the clear, but regardless of what the law says, it's bad Karma to design awful looking rip-offs.

A fluorescent, rip-off green Hulk powertool? Oh yeah the construction workers are going to be all over that. See; Karma.
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Pixelation, 25 Oct 2010 @ 6:45pm

Re: Re: Endorsement that wouldn't help
Um, perhaps I'm a little slow. AFAIK forgo is a correct spelling, if that's what you're pointing out. I might change endorsed to endorse but I think everyone here who isn't a lawyer will get it anyway.

"But that's exactly the point of trademark."
Um, I think you missed my point. Normally someone will copy a trademark to help sell a product. In this case (me) it wouldn't help, in fact it would hurt.
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Jay (profile), 25 Oct 2010 @ 6:55pm

Re: Not cool you guys
Yeah I tend to agree. Trademark is based on the idea of "passing off" which has an element of free speech attached to it.

To put simply. The power-tool could easily be seen to be endorsed by "The Hulk" himself, which would be a breach of "The Hulk's" freedom of speech.

There's a UK case involving Eddie Irvine where a radio show made a poster that made it look like Eddie was endorsing them. Another one in Australia where a shoe company did a parody of Crocodile Dundee, which was fine, except the court found they went a step too far and a "fair minded person" could honestly believe Paul Hogan was endorsing the show company.

Its a contentious issue for sure but I see the point. You've got freedom of speech (not being forced to endorse something). Passing-off. And, lets not forget, economic incentives (which really should only come into play for damages).

It makes no difference if Disney doesnt make power tools, economically "The Hulk" is devaluing their trademark if they should ever want to license it (endorse) a power tool. But like I said, that should only affect damages in my opinion.
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RD, 25 Oct 2010 @ 7:12pm

Yeah, uh, I CALLED IT
Yeah. I CALLED THIS months ago. Everyone shouted me down and said "oh NO, Marvel is its own company. Disney wont interfere."

'Tards.

DISNEY IS THE SINGLE MOST LITIGIOUS COMPANY ON THE PLANET WHEN IT COMES TO THEIR IP.

I TOLD you this sort of thing would happen.

The death knell, and I'm calling it HERE, is when they come down on fan/artist sketches, posters, etc at conventions, and either shut that side of things off, or demand usury-level licensing fees to do it.
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Anonymous Coward, 25 Oct 2010 @ 7:25pm

I'm on Disney's side on this one. (A rare event for me.) If you don't stop someone from borrowing your brand to market their power tools, what's next? Mr. Incredible Vibrators? Not in my house!

Seriously though, I would argue trademark is supposed to protect your branding and avoid market confusion. Looking at that air compressor, I'd be thinking, "WTF is Disney doing making power tools?"
Just because they aren't in that particular business doesn't mean they can prevent someone from using their brand.
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abc gum, 25 Oct 2010 @ 7:25pm

Re: Yeah, uh, I CALLED IT
Awww - man
This whole story is so Mickey Mouse
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wordsworm (profile), 25 Oct 2010 @ 7:31pm

The jury will hand the tool makers their asses
No reasonable person of even average intellect could possibly support the tool maker in this. Clearly, they were trying to get endorsed by the fictitious character bought and owned by Disney.

My suggestion: Come up with a comic book character first, then animate it, then make a movie of it. Then they can make their tool set in the honour of their character.
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Christopher (profile), 25 Oct 2010 @ 7:35pm

Re: That's so sixties, Mike
No,it doesn't. The judges should slap down companies that try that bull, and put penalties against their lawyers (such as jail time) for daring to argue that.
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Christopher (profile), 25 Oct 2010 @ 7:37pm

Re: Re: Not cool you guys
No, it doesn't 'devalue their trademark' because they are not in the market right now.

Trademark is NOT meant to cover things that are totally OUTSIDE the business that the people are in, unless they have ALREADY SIGNED AN AGREEMENT WITH SOMEONE ELSE to endorse their product before this product comes out.
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Christopher (profile), 25 Oct 2010 @ 7:38pm

Re: The jury will hand the tool makers their asses
Funny, I'm a reasonable person of ABOVE AVERAGE intellect, and I support the tool maker on this, as so my parents and various relatives who I have shown this to.
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Anonymous Coward, 25 Oct 2010 @ 7:43pm

Re: Re: The jury will hand the tool makers their asses
As the creator of Incredibly Ripped Purple Pants, I also support the tool maker.
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The Groove Tiger (profile), 25 Oct 2010 @ 7:45pm

Re: Re: Not cool you guys
Likewise, if my name is Joe and I have "Joe's Pizza", and somebody in town X opens "Joe's Laundromat", I have the right to complain because SOMEDAY I might want to open a laundromat.

That's not how trademark law works.
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The Groove Tiger (profile), 25 Oct 2010 @ 7:46pm

Re: Re: Re: Not cool you guys
Nor can the maker of "Joe versus the Volcano" movie sue me because he may one day open a pizza place with the motif of the movie.
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BruceLD, 25 Oct 2010 @ 9:34pm

Subject
Disney has a good case. They are a bunch of tools.
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Blatant Coward (profile), 25 Oct 2010 @ 11:50pm

Re: Re: Yeah, uh, I CALLED IT
Just plain freaking goofy is what it is.
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Anonymous Coward, 26 Oct 2010 @ 1:44am

Disney again?
Wasn't there a comment thread somewhere else with someone demanding proof of Disney suing someone because (they claimed) unless you could furnish definitive examples it couldn't possibly have happened? Well guess what...?

Just to throw wood on the fire... shouldn't The Hulk be public domain by now since he's been around since the early 60's? And should you be able to trademark a dictionary word? Does it need to be a specific "Hulk Green" colour to be infringing or could you then claim rights over a verdigris abandoned ship?
Hulk:
�a ship that has been wrecked and abandoned

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Anonymous Coward, 26 Oct 2010 @ 1:48am

Re: Re: Re: Re: Not cool you guys
Nor can the maker of "Joe versus the Volcano" movie sue me because he may one day open a pizza place with the motif of the movie.

I bet if you made "Joe's Pizza Mountain" with a volcano or "pacific" theme he'd have a damn good go though....
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Shawn (profile), 26 Oct 2010 @ 4:17am

Re:
It would probably sell better, since kids see daddy's Hulk saw and want to be like him.
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Richard (profile), 26 Oct 2010 @ 4:25am

Syntax
We software engineers know how to fix this problem...

every advertisment should begin with the words:

using namespace power_tools

or

using namespace fictional_superheroes

there - fixed it for you.
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Anonymous Coward, 26 Oct 2010 @ 5:09am

Re: Re: Re: Not cool you guys
What happens if, down the road they wanted in the market? that's a problem. They would have to make the current hulk go gray or away :)
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halley (profile), 26 Oct 2010 @ 5:55am

Re: Re:
Okay, so if Disney wanted to make a toy Hulk saw, would Disney need to get a license from the tool company to make a diminutive green saw "just like daddy's", even though Disney already has a pretty solid lock on the green+masculine=hulk customer mindshare?

This is where the moron-in-a-hurry standard comes in. I'd like to think I'm not a moron, but if I saw such a toy, it would be tough for me to guess the actual affiliation-- was it made by the tool maker and endorsed by the comic maker, or the other way around?
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Joe Banner, 26 Oct 2010 @ 6:18am

....
HULK DRILL PILOT HOLE!
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Anonymous Coward, 26 Oct 2010 @ 6:21am

Anyone that thinks Disney is their friend drinks lala juice before bed. But we have to have a law that addresses when a brand becomes part of culture. Like the Hulk. Everyone uses the word Hulk to mean one biiiig dude. We don't think green, we think big, tough. That is a part of the language of our culture and it should lose it's trademark because it has become a part of our language. Anyway the word Hulk was around way before the trademark. I would fight it if for nothing else but the publicity.
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Christopher (profile), 26 Oct 2010 @ 7:15am

Re:
Simple: they brand it as "Disney's Hulk Tool Set" and we move on!

Frankly, "Hulk" cannot be patented or trademarked, it was around a long time before The Incredible Hulk was even THOUGH OF! It's a word dating back years, if not centuries.

Now, "The Incredible Hulk" meaning the character and it's IMAGE can be patented and trademarked. As long as this company making this power tool is not using the full "Incredible Hulk" name and image on their packaging or tool?
It's time and dandy by the CONSERVATIVE interpretation of the law.
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Christopher (profile), 26 Oct 2010 @ 7:17am

Re: Re: Re: Re: Not cool you guys
No, they wouldn't. They would just have to plaster the Incredible Hulks likeness and name (the full name) on the package.

The word 'Hulk' has been around for years, if not centuries. It is a word that means 'very powerful' and has for a long time. Hulking brute dates back to 1700's England, at least.
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Christopher (profile), 26 Oct 2010 @ 7:19am

Re: Yeah, uh, I CALLED IT
Still protected under the parody laws, RD. Need I remind also that they tried that bullcrap, and the courts ALREADY came down on them hard by ruling AGAINST that stuff, as long as the person in question said "I am not affiliated with Disney/Marvel/whoever in any fashion!"

That is how fanfiction and adult fanfiction websites get around those IP laws, by posting disclaimers on their stories.
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Christopher (profile), 26 Oct 2010 @ 7:21am

Re: Re: Re: The jury will hand the tool makers their asses
Ah, but when you are using 'Incredibly Ripped Purple Pants', anyone with a brain would think of the Incredible Hulk wearing those in the movie.

If you just said "Ripped Purple Pants".... I would just think of the things like my young cousin wore: holey as hell purple shorts/pants that are 'in fashion' today.
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Marcus Carab (profile), 26 Oct 2010 @ 7:44am

Re: Re: That's so sixties, Mike
If judges sent lawyers to jail for stretching definitions and trying weak arguments, the legal landscape would be very very different.
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Anonymous Coward, 26 Oct 2010 @ 8:49am

unless you wanted a hulk power drill to match your

http://www.amazon.com/Fisher-Price-Handy-Manny-Right-Power/dp/B0016J2PMU
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Anonymous Coward, 26 Oct 2010 @ 9:18am

Re: Re: Re: Re: The jury will hand the tool makers their asses
Ah, but when you are using 'Incredibly Ripped Purple Pants', anyone with a brain would think of the Incredible Hulk wearing those in the movie.

Assuming that's true, is copyright and trademark law really that vague? That you can claim rights over a combination of an adjective (and at that one not directly the apparant trademark "Incredible...") and a common noun and verb decriptor on the basis that it might make people think of your product? I'm willing to believe the answer is yes, but I'd be interested in both the "correct" answer and a justification of why this should be so if it is.
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Jason, 26 Oct 2010 @ 9:45am

Re: Re: Re: Endorsement that wouldn't help
Um, perhaps you are. Who knows? You may or may not know that "[sic]" indicates that the fore-going (he he) word is intentionally spelled the way that it is spelled. It does not necessarily mean that it is viewed as being misspelled. It may, for instance, just imply that the quoter prefers the alternate spelling but used this one instead for the accuracy of the quote.

Also, it is proper to use "endorsed" when using a conditional subjunctive.

That's all.
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Anonymous Coward, 26 Oct 2010 @ 9:53am

Ah, just wait until you see my line of "Jedi Power Tools"
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Anonymous Coward, 26 Oct 2010 @ 11:50am

solution
put this on the tool.

"due to disney lawsuit we can't use green or grey"
make it bright pink
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Jeff Jones (profile), 26 Oct 2010 @ 1:51pm

Re: Yeah, uh, I CALLED IT
Not just disney...

Until recently, neither he nor the WWF/WCW (titan Sports) owned the full rights to his "Hulk" name. "Hulkamania," "Hulk Hogan," and "Hulkster" were all owned by Marvel Comics. The WWF/WWE made a deal with Marvel to use the name "Hulk." This was also done with WCW when Hogan went to WCW. Also, WCW used "Hollywood Hogan" to cancel the Marvel deal, but the deal was still alive. However, before the 2006 release of his multidisk anthology, Hogan acquired the rights to the name Hulk Hogan from Marvel. The trademark citation "Hulk Hogan is a trademark of Terry Bollea" can be found on the DVD-set credits.

The above was taken from IMDB.com
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Anonymous Coward, 26 Oct 2010 @ 3:04pm

HULK name used [check] / Green in color [check]
Anyone think these guys, makers of HULK Loading Dock products, will be one of Disney/Marvel's next targets?

http://kelley.4frontes.com/Products/LiftProducts/ld.aspx

I've downloaded the "Kelley HULK Dock Lift Brochure", and based on the current tool suit, the logo in the brochure sure looks like it's headed for sue-town.

Sounds like the, "Monster Cable - sue everybody" rule might be just getting started for Disney/Marvel legal team and the "HULK".
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