The comic book is scheduled for release in April, but the reviews are already in. Jupiter's Legacy is a huge rip-off.
To clarify, the product has appeared under dubious circumstances. Granted, the parties responsible are all viable industry players (Mark Millar, Frank Quitely, and Image Comics), but the trio has finally stepped over the line of legality in their blatant violations of statutes set forth by the Lanham Act - a household term amongst law students, legislative pundits, and amateur trademark gold-miners alike.
'The Lanham Act is found in Title 15, Chapter 22 of the U.S. Code and contains the federal statutes governing trademark law in the United States. It provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if any confusion results or if the strength of a strong mark is diluted. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising,' and the statute has barred many derivative works - such as Jupiter's Legacy - from federal trademark protections (U.S. Legal, 'Lanham Act or Federal Trademark Act Law and Legal Definition.') Such a prohibition is assessed through 'likelihood of confusion' with other creators' prior works.
The history of Jupiter's Legacy is well known to anyone who has followed it. However, in referencing the entire backstory, the entertainment-based registration for brand name Jupiter's Child was filed December 1, 2011. Its registration date was October 23, 2012, its registration number is 4229032, and its description reads, 'Entertainment in the nature of visual and audio performances by a musical band.'
In response, Mark Millar and Frank Quitely filed a trademark application for Jupiter's Children on January 11, 2012. Its serial number, 85514151, received a protest notification on February 25, 2012, a suspension letter on April 23, 2012, and an 'office action' refusal citing likelihood of confusion with regard to the mark's similarities with Jupiter's Child on November 23, 2012 (as of publication, the parties have not responded to the USPTO's requests for arguments in favor of registration.)
After the parties received cease-and-desist letters, regarding their use of that specific mark, they applied for Children of Jupiter on November 27, 2012. Its serial number is 85788864, and a protest was accepted by the trademark office on December 17, 2012 that again cites a conflict with the registration for Jupiter's Child.
Beyond this, on November 30, 2012, the parties filed for three additional trademarks - each entertainment-based, and each featuring the already registered entertainment-based term Jupiter's: Jupiter's Gift (serial number 85791567), Jupiter's Legacy (serial number 85791577), and Jupiter's Requiem (serial number 85791592.)
Protests were filed for each, but the U.S. Patent and Trademark Office has decided to accept an 'all-in-one' protest filing for this trio of serial numbers, each citing a violation of section 2(d) of the Lanham Act when compared to the registration for Jupiter's Child. This 'Administrative Response' was issued by the USPTO on January 8, 2013 (these facts are publicly available by visiting www.uspto.gov, searching trademarks, typing in the term Jupiter's, and, after clicking on each individual record's link, hitting 'TSDR' and then 'Documents.')
Mark Millar, Frank Quitely, and Image Comics were issued yet another cease-and-desist notification by Jupiter's Child, following the USPTO's legal assessments mentioned above, as the parties have waged an intensive public relations campaign for the restructured brand name on which they have finally settled, Jupiter's Legacy. In part, the notification read:
'This is a cease-and-desist letter, regarding your intentions to use brand name Jupiter's Legacy for entertainment-related purposes. Although we've known about your trademark application for Jupiter's Legacy since it initially hit the USPTO database, as you're now well aware, the Patent and Trademark Office has declared your entertainment-related usage of the term Jupiter's Legacy a violation of Section 2(d) of the Lanham Act (i.e. 'likelihood of confusion.')
'We are also aware of your belief that Jupiter's Legacy will be, in your own words, 'bigger than Star Wars' and, therefore, are prepared to take swift legal action if necessary.
'In January, 2013, letters of protest were accepted by the USPTO, regarding your attempts at simplifying forms of the term Jupiter's Child into Jupiter's Legacy, Jupiter's Gift, and Jupiter's Requiem for personal, entertainment-related use. The USPTO cites the same factors involved in their acceptance of protests regarding your applications for Jupiter's Children and Children of Jupiter, which were, then, used in turn to reject your application for Jupiter's Children, post-protest. As fact, your Jupiter's related marks will not register as trademarks due to a violation of Section 2(d) of the Lanham Act.
'On April 23, 2012, you were issued a 'suspension letter' by the USPTO, who then alerted you to the infringement. On November 23, 2012, you were told the following by the USPTO:
'Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 4229032 (e.g. Jupiter's Child.) Trademark Act Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq. See the enclosed registration.
"Taking into account the relevant du Pont factors, a likelihood of confusion determination in this case involves a two-part analysis. The marks are compared for similarities in their appearance, sound, connotation and commercial impression. TMEP §§1207.01, 1207.01(b). The goods and services are compared to determine whether they are similar or commercially related or travel in the same trade channels. See Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002); Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 1336, 57 USPQ2d 1557, 1559 (Fed. Cir. 2001); TMEP §§1207.01, 1207.01(a)(vi).
'Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973)); TMEP §1207.01(b)-(b)(v). Similarity in any one of these elements may be sufficient to find the marks confusingly similar. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); see In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1586 (TTAB 2007); TMEP §1207.01(b).
'The applicant’s stories relating to people, the arts, and entertainment, as well as comic books and magazines featuring comics and novels, are all presumably on the topic of musical bands, such as the registrant’s band, rendering confusion likely as the same consumer is likely to be interested in all of these goods and services. When goods and services offered under nearly the same name in trade are used 'conjointly', confusion is likely.
'Furthermore, the applicant’s stickers, posters, trading cards and postcards, that are all non-sports related, and hence, presumably entertainment related, are also subject to confusion with the registrant’s musical band performances in that goods such as these are often used as promotional items for musical band performance services.
'Moreover, confusion is particularly likely in that others offer both, performances by a musical band, and stickers, posters, postcards and other promotional type products, under the same marks in trade. See the attached Automated X-Search System evidence in this regard. For example, see U.S. Registration Number 3889188 attached for the mark NEW KIDS ON THE BLOCK for live musical performances as well as for stickers, postcards and posters. Under these circumstances, confusion is likely.
'In fact, where the marks of the respective parties are identical or nearly identical, as here, the relationship between the relevant goods and services need not be as close to support a finding of likelihood of confusion. See In re Shell Oil Co., 992 F.2d 1204, 1207, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202 (TTAB 2009); In re Thor Tech, Inc., 90 USPQ2d 1634, 1636 (TTAB 2009); TMEP §1207.01(a).'
'We, in every way, would love to see you succeed in life. However, for now, we are fully aware that we are on solid legal ground here and are more intent upon protecting our legally acquired rights, and must issue this cease-and-desist letter to you, prior to your product launch. Please know that we take all cases of infringement seriously, are always vigilant against such offenses, and are eager at the challenge of defending our rights. In a case of this magnitude, we are even more encouraged by the media visibility of your efforts and products.
'We are also willing to license you the rights to use your proposed forms of Jupiter's Child, which have all been deemed conflictual with the registered trademark Jupiter's Child by USPTO trademark attorneys. Feel free to make contact anytime.'
On January 11, 2013, Mark Millar sent an email to Jupiter's Child, which read:
'Hello! Lovely to hear from you. Our comic is called Jupiter's Legacy. Your band, I believe, is called Jupiter's Children. I thus have no idea what you're talking about and neither do you in terms of copyright violation. My lawyer is probably ignoring you now. Best, Mark Millar'
The next day, Mr. Millar wrote the following:
'I've no idea why I'm wasting my time with this, but I think you misunderstand. Our project is called Jupiter's Legacy. Your band is called Jupiter's Child. Star Wars, Star Trek and Starman all have the word STAR in the title with no conflict just as my project and your band have Jupiter in the title. What on Earth are you talking about? Are you aware that there's a movie called Jupiter's Rising out next year? Are you taking them to court too?'
The actual answer to Mr. Millar's question lies in the USPTO's own statement that, 'When goods and services offered under nearly the same name in trade are used 'conjointly', confusion is likely.'
So, in presentation of the details, trademark attorneys hired by the U.S. Patent and Trademark Office have told Mr. Millar, Mr. Quitely, and Image Comics several times that they are all in violation of Section 2(d) of the Lanham Act, re: 'likelihood of confusion,' and has cited the trademark registration of Jupiter's Child a grand total of five times in doing so. As a result, the three parties are of the opinion that the office is, 'misinformed,' and that they are, simply, 'wasting their time' with legalities and laws - even in the face of several case citations that back the trademark office's assessments.
Mark Millar is represented by Creative Artists' Agency (CAA), one of the most recognizable talent agencies in the world, and Image Comics is well known to fans of such craft. Given the recent (and future) activities of these people, it is not surprising that, according to Pew Research Center, only one-third of potential customers trust the entertainment industry, or that the industry itself has a longstanding reputation as a trench for bloodsuckers, con-artists, leeches, and imitators ('Distrust, Discontent, Anger, and Partisan Rancor,' April 18, 2010.)
Mr. Millar, Mr. Quitely, and their publisher each represent all that is questionable about the current standards of creativity and originality, and, even if their product is successful, such damning evidence leads to an obvious, eventual 'triple damages' federal court finding. Taking such a financial risk is unintelligent, at best, but, according to Comics Alliance, 'such is the singular talent of Mark Millar' (Khouri, 'Mark Millar and Frank Quitely Conceive Jupiter's Children,' January 12, 2012.)
Follow Marcus Singletary on Twitter at https://twitter.com/IAmSingletary. His new album, Marcus Singletary Sings Country Music Standards, is out NOW at iTunes.
