"Hulk" Trademark Infringement?

http://www.thefreedictionary.com/hulk

Since hulk is in the dictionary, Disney probably won't be able to stop them, however, since hulk is not a proper noun, Disney, if they decide to pursue this, might be able to force them to stop capitalizing the "H".

This leads me to the question, "Who trademarked Hulk first, Disney or Hulk Hogan, the wrestler?" Both have franchises using the name.

After looking at the definition, I wonder why they would want to associate tools with it.

Yet another example of why we don't see lawyers standing in unemployment lines.

Is this tool green? Does it increase in size when angered? Is it publicly endorsed by Lou Ferrigno? Where's the trademark infringement again?

I am dumbfounded. This is about money!

From this Reuters article: "Marvel is looking for an injunction, a cancellation of the defendant's trademark, and all of the defendant's profits from the allegedly infringing products."

I doubt many children will be purchasing air compressors or earth compactors. I also doubt many adults will think that "The Hulk" character has any connection to their tools... unless they wear their little brother's shirt and pants, torn and ragged.

http://dockets.justia.com/docket/ohio/ohsdce/3:2010cv00382/141567/

Regardless of what I think about it, I do think Disney will win. Especially if it gets in front of a jury.

The mark is only supposed to cover the "area" over which it is used and Disney doesn't make power tools. Having said that, Disney has enough money that they can damage Airbase's value with multiple appeals.

Do NOT make this tool angry. You will not like it when it is angry

I remember when Red Head brand developed a rotary hammer drill for hard wood. They wanted to call it the "Red Headed Pecker Wood", but lost a legal battle with Walter Lantz.

I would think that both using the name would be mutually beneficial to the other.

I'm in Lowe's one day and I see a Hulk power tool on display. That jogs my memory of the movie and I decide to watch it this weekend. Conversely, having watched the movie, the name jumps out at me the next time I am at Lowe's and I buy that brand of table saw.

Is this just about nabbing some extra cash, steered by the lawyers? I'm sure the laywers' cut is not marginal!

Yeah, but what if the relatively new Hulk tools suck?

I'm no fan of Disney's aggressive practices, (they really are an evil empire), but in this case I would have to side with them. In the link in my post above, looking at them side by side, I would say, at first glance, that this was a Disney/Marvel endorsed product.

What Disney is arguing isn't the name Hulk, but the combination of the name, the color, font and style.

As person that has a trademarked name, that is in the process of registering that name, I can see their argument.

having noted the replies from the other side of the pond, where the rules can be quite different, I thought I might add the to the mix a UK opinion.

Having the Patents Office in my city and spent many an hour following their procedure to get a "Trade Mark" or "TM" I was made aware of the process.

Any words or design can be used in a "TM" but NO company can have the exclusive rights to the letters or words, preventing anyone from using the same letters or words.

for example... part of my "TM" were the letters "UK", all you have to do is look at how many companies have the letter "UK" in their company name and/or trademark.

All a trade mark registration means that no one can use for design (letters and all) in the combination that you have designed.

So having a drill called the "Hulk" is not a breech of the trade mark as no one can (for the want of a better word) "hi-jack the word "Hulk", as was so aptly exampled by one post, "Hulk Hogan"

How many times have you been to a computer store and seen a "Mini Mouse"?

And before I go, here in the UK the small letters "TM" after a logo mean "Totally Meaningless"..... if someone copies a trade mark, trading standards MIGHT ask them to take it down, if someone EVEN notices the copying and can be bothered to report it!

So in all, with computer "mini mouse", handyman's "Hulk" drills and every "looking glass" mirror manufacturer to take to court, Walt is gonna be a busy boy!

Is this any better than Apple suing another company for the rights to the word Pod?

TRADEMARK INFRINGEMENT: Eight factors for likelihood of confusion

To analyze whether a particular situation has developed the requisite "likelihood of confusion," courts have generally looked at the following eight factors:

1. the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);
2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods);
3. the strength of the plaintiff's mark;
4. any evidence of actual confusion by consumers;
5. the intent of the defendant in adopting its mark;
6. the physical proximity of the goods in the retail marketplace;
7. the degree of care likely to be exercised by the consumer; and
8. the likelihood of expansion of the product lines.

The first five of these factors are examined in every trademark infringement action. The last three factors are the most common additional factors that are considered by a court.

Of these eight factors, the first two are arguable the most important. The similarity of the marks is clearly an important part in establishing likelihood of confusion, but it is far from determinative. It is possible for the same, identical mark to be used in the same geographic area without any trademark infringement occurring, as long as the goods or services of the parties are sufficiently dissimilar. As an example, a quick review of the Minneapolis phone book lists numerous companies operating under the name SPEEDY. The services offered by these companies are as follows:

• Car washing services;
• Locksmith services;
• Grocery retail services;
• Printing services;
• Plumbing services;
• Sign creation services; and
• Video rental services.

In one way, these companies are a good example that the same mark can exist on multiple goods and services as long as the goods and services are sufficiently difference. However, this may be a poor example since the SPEEDY mark may be too descriptive to function as a trademark without proof of secondary meaning.

http://www.bitlaw.com/trademark/infringe.html#elements

Take Delta airlines. You can go to any home improvement store and find power tools made by Delta. There is no affiliation between the two. The most important factors in determining infringement is similarity of marks, and association of similar goods or services. Not many people associate buying tools with buying plane tickets. The marks for both companies look very dissimilar. Another element to consider is he sophistication of the purchasers of the products/services. Generally, the more sophisticated and knowledgeable the purchasers, the less likely it is that those purchasers will be confused by similar marks.

With all of that said, it is the totality of the elements where the argument for confusion between marks could be made.

What's interesting about this tool case that is not addressed, directly, in the elements listed above is the use of the green color of the tools below the green name. But if you look at their trademark, there is no use of green in Marvel's trademark # 78293887 http://tess2.uspto.gov/bin/showfield?f=doc&state=4007:eb48c5.2.7 The tool company will be able to argue many of the elements above successfully in their favor, that green may be their undoing. Otherwise, the users are sophisticated enough not to confuse Hulk merchandise from a comic book with Hulk merchandise from a tool store.

If Disney were to win, and they had to change the name, they should change it to

MAC HULK! Then we could have some real fun. Does anyone know the difference between a circular saw blade and a hamburger??

Bill

No!

Disney's case has merit.

must disagree with you there, if they did win and claim title to the word, then that would have repercussions unknown.

I'm sure that research would show that someone, somewhere has and still does, use the word.

Maybe Walt should put in a claim to the Oxford English Dictionary & Shakespeare (see Troilus & Cressida, act 2) as the word "Hulk" has been used there for a LONG TIME!

From the dictionary...HULK: (1). noun - a ship that has been wrecked and abandoned. (2). noun - a very large person. (3). verb - appear very large or occupy a commanding position.

I've also looked at Wiktionary.. enlightening!

Unfortunately, in this case, I can put myself in the position of the creator of The Hulk, and because I have lived the history from the character's inception until the present day, I can see that there is no other generic usage of the term "Hulk" that refers or implies robust equipment or product. The term is archaeic in some sense, and is replaced with words that are more contemporary or sound close, and mean the same, like 'bulk'. Looks like Hulk is aligned closely in America and English-speaking countries with the comic book character, and arguably, in foreign countries where the comic is translated, but the usage of the English name "Hulk" is retained. I've tried to justify it on the manufacturer's side, but it always keeps coming up short. It's really only a rip-off in this case, I'm afraid - and I don't really care for the comic book character, anyway, because it seemed like a cheap take on Dr. Jeckyl and Mr. Hyde.