According to recent reports, toy company Hasbro has filed a legal suit against DC Comics and Warner Bros. over the Super Hero Girls character Bumblebee being used to market toys. The move seeks to block sales of rival Mattel SHG dolls and LEGO sets featuring the size-changing Teen Titan, as they claim that the character’s name – which is trademarked by Hasbro for their popular Transformer Autobot – could create confusion amongst buyers and that they’ll be mistaken for each other.
Legally, Hasbro trademarked the name “Bumblebee” in 2015 and he’s been one of the most popular Transformers amongst fans since his debut in 1983. He’s so popular that a spinoff film for the character is due out in 2018. DC’s Bumblebee, however, was first introduced in the Teen Titan comic books in 1977 and has appeared in the Young Justice cartoon series as well as the current Super Hero Girls show.
But would fans of either franchise really be unable to tell the difference and confuse the two, as the claim contends? The Transformer known as Bumblebee is a wise-ass, giant, yellow (male, assuming they have real genders) robot who can turn in to a muscle car. DC’s Bumblebee is a feisty, upbeat young woman with wings who shrinks and stings people. Based on that it seems unlikely, but copyright law is hard to predict.
The battle over trademarked names is a heated one, especially in the world of pop culture, which tends to bring out the worst in everyone. It’s also familiar ground for both DC and Hasbro.
The most notorious case for DC involves Captain Marvel. The original Captain Marvel appeared in Fawcett Comics in the 1940s, and his comic books outsold those of their biggest rival, National Comics (later to be known as DC) flagship character Superman. National sued them for copyright infringement of Superman, and in the process acquired Captain Marvel for themselves – choosing not to feature him in any ongoing series. However, by the time they did use him again it was too late, and Marvel Comics had created their own character with the same name – which they had promptly trademarked. Marvel Comics issued a cease-and-desist letter to DC, forcing them to rebrand their own Captain Marvel comics with the name SHAZAM!
This isn’t the only case like this. Back in the Golden Age, publishers used to produce “ashcan” comic books – issues which were never intended to be sold, but which bore the names of countless potential characters on their covers – just for the sake of registering those names as trademarks. It’s much the same process as films being rushed in to production and made on incredibly low budgets, just so a studio can keep the rights to licensed characters (such as the Fantastic Four). Meanwhile, DC and Marvel have jointly sued independent creators and others for using the terms “Superhero” and “Superheroes” – which they jointly hold the rights to – claiming that others using those words would cause confusion and dilute their brand.
For Hasbro, their current legal action over a name comes two years after they themselves were sued by a Fox News anchor, Harris Faulkner, after they created a toy hamster with the same name. Faulkner claimed that Hasbro had allegedly violated her likeness and caused her emotional distress due to their Littlest Pet Shop hamster who bore her name, requesting $5 million in compensation. Hasbro defended themselves by claiming that “name-sameness is not enough to state a claim for a violation of one’s right of publicity”.
The Transformer Bumblebee and Super Hero Girls’ Bumblebee also share “name-sameness”, although in this case Hasbro do own the copyright – even if DC’s Bumblebee was created first. That this case also hinges on the chances of the two characters being mistaken for each other makes it a tricky one, since it’s unlikely that any fans could confuse them in any way. Does this name-sharing dilute their brands? Again it seems highly unlikely, since their franchises are so different.
While their fictional worlds may have clearly defined borders between wrong and right, the real world legalities of trademarks and copyright infringement is nowhere near as simple.