By: H.W. Pfabe | May 25, 2017

I was going to take a break from the “MARVEL at the Law!” series of blog posts, but Marvel is in the news again, providing a great lesson (and dispelling a common misconception) about Trademarks.

 

Oh, and no, as usual, this is NOT about politics.

 

On May 12, Marvel applied for three new Trademarks, all to the phrase “Hail Hydra” (as originally reported by Comicbook.com at http://comicbook.com/marvel/2017/05/21/marvel-just-trademarked-the-phrase-hail-hydra/). So, why is this significant?

 

First, let’s start with a little history (stay awake, I’ll keep it short).

 

  

“HAIL HYDRA”?

 

“Hail Hydra” is a phrase which first appeared in Strange Tales #135 (published in August of 1965), which was also the first appearance of the terrorist organization known as Hydra. Part of the salute which is yelled out by the Nazi-like Hydra soldiers includes the phrase “Hail Hydra!”

 

Hydra has appeared in Marvel comics regularly since then, almost always yelling “Hail Hydra” at some point.


  

That was about it, for almost half a century.

 

However, with the release Captain America: The Winter Soldier in movie theaters in 2014, “Hail Hydra” entered the public consciousness. As Gary Shandling whispered “Hail Hydra” into a fellow secret Hydra agent’s ear, thus showing his true allegiance, the phrase became a meme.

 

 

Any time someone is whispering into someone else’s ear, “Hail Hydra” now makes it funny.

 

 

WHAT CHANGED?

 

On May 11, the Hollywood Reporter published an article (http://www.hollywoodreporter.com/heat-vision/hail-hydracom-redirects-official-white-house-website-1002669) about how the domain “hail-hydra.com” redirects to the White House website, and specifically to President Donald Trump’s biography.

 

The very next day, on May 12, Marvel filed three new Trademark Applications (each type of use of a Trademark may require a different application, though in this case they actually could have use just a single application for all three categories of use).

 

After using the phrase for over half a century, Marvel finally decided that it was worth the $400 Trademark Application fee.

 

And since then? In just over a week from the filing, the phrase has gotten even more include the public eye.

 

While visiting Saudi Arabia, President Trump was photographed along with Saudi King Salman bin Abdulaziz and Egyptian President Abdel Fattah al-Sisi, all with their hands on a glowing globe at the opening of a new center to combat extremism.

 

Enter a new wave of memes and tweets:

 

https://twitter.com/nycsouthpaw/status/866373265060761600/photo/1

 

GOT IT. WHAT’S YOUR POINT?

 

The point, beyond an excuse to post a bunch of memes, is that Marvel applied for a Trademark over half a century after they first started using the phrase. That’s important to understand, because many small business owners think they need to apply for a Trademark before they even go into business. This can be intimidating, especially when you don’t know what will end up being important to your brand.

 

In fact, I’ve read articles written by other attorneys who say that you HAVE TO apply for a Trademark no later than 3 months after you start using it.

 

This is simply not true.

 

A Trademark is meant to identify a source of goods or services. You build your brand’s reputation, and people associate the quality of your brand with your name or phrase. You don’t want your competitors to be able to take advantage of the work you put into that brand recognition. So, you use a Trademark.

 

You cannot Trademark something that you have not yet used in commerce. If you are afraid that someone else will come along and use the name/logo/phrase before you do, then you file an “Intent to Use” application, locking in your application date but buying you another (renewable) 6 months in which to start actually using your Trademark (for a small additional fee).

 

However, you can apply for a Trademark at ANY TIME after you start using it. Now, if you don’t apply, then you run the risk of someone else starting to use it, and then you will have limited legal remedies. It’s all about your personal risk tolerance.

 

So why do people think that they only have 3 months?

 

Well, if you apply within three months of when you start using it, then the USPTO (yes, Trademarks go through the same government agency as Patents) treats it as though you filed your application on the first day of use. If someone else came along and started using it during those 3 months, then you get a grace period to get yourself ahead of them.

 

 

THE TAKEAWAY:

 

Trademarks are relatively inexpensive to acquire. For many companies, they may be one of their most valuable investments into their brand and their growth. However, you don’t need to apply before you go into business. You don’t even need to apply immediately when you first start using a name/logo/phrase that you might want to Trademark.

 

In fact, you can wait 52 years, or more. And, it can potentially last forever.

 

The lesson is, you never know what phrase or other branding might be important to your business. You never know what you might need to protect, or what might damage your reputation if you don’t protect it.

 

Even if you’re already using a name/logo/phrase, and have been for years, it is still worth regularly checking with an experienced Intellectual Property attorney and seeing what may be important to your business that might not have mattered before, and how you should go about protecting it.

 

Even if it makes for a funny meme.

Category: Trademarks 

Tags: Marvel Trademarks Hail Hydra