Is this a trademark issue?

So, for years now I’ve been writing a series about beings called the Eternals. Only now did I find out that Marvel apparently also has beings called the Eternals. Since this is completely by accident, as far as I can tell the two have nothing to do with each other aside from being immortal, as the name suggests.

Is this trademark infringement? I’ve tried researching it, but I can’t find a definitive answer for my specific case. I do use the name in the title of the first book, which is my main concern.

I’m not an expert, but I don’t think it’s a problem as long as you don’t copy the plot and all :smile:

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I don’t think this will be an issue at all. You didn’t know about this when writing your story. As long as your story is different from Marvel’s ones it should be fine.

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Hi. I’m not an expert, so this is only my personal opinion, but I think you’re good. Upon quick googling, when Marvel trademarks The Eternals they trademarked it as a “Marvel The Eternals”.
You using a name Eternals shouldn’t put you in any trouble unless you copy their plot. Or call it Marvel The Eternals.
At least that’s what I think.:woman_shrugging:

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I did look the trademarks up, and there does seem to be one that’s just “Eternals”, but it only relates to comic books. But I don’t understand how any of this works :smiley: Honestly, I find it odd that such a relatively generic term can be trademarked in general.

Anyway, thank you for the reply. : ) @monique0912345 @feufeu15 thank you, too.

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I don’t know anything about trademarks, but I found this article: http://www.appocalypse.co/entertainment/marvel-trademark-eternals-next-avengers-franchise/

it says:

That Marvel intends to bring The Eternals next on the big screen is no secret. It’s something that has been speculated for well over a year now and even partially confirmed by Marvel (or at least hinted at). Recently though, trademark filings have emerged that lend further credence to Marvel’s intents to not only develop The Eternals but turn it into something big.

Charles Murphy of MCUExchange spotted multiple trademark filings made by Marvel Studios for its upcoming property The Eternals . The trademarks were filed under multiple goods and services, as is customary with most of Marvel’s franchises. The number of trademark filings hints that Marvel intends to make The Eternals its next major franchises following The Avengers , another claim that has been in circulation for well over a year now.

Sounds like it would be risky to use the name, especially if both are immortals. But I don’t know.

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Maybe this will help. It’s the U.S. Patent and Trademark office: https://www.uspto.gov/page/about-trademark-infringement

What is trademark infringement?

Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion , deception, or mistake about the source of the goods and/or services.

How do I know whether I’m infringing?

To support a trademark infringement claim in court, a plaintiff must prove that it owns a valid mark, that it has priority (its rights in the mark(s) are “senior” to the defendant’s), and that the defendant’s mark is likely to cause confusion in the minds of consumers about the source or sponsorship of the goods or services offered under the parties’ marks. When a plaintiff owns a federal trademark registration on the Principal Register, there is a legal presumption of the validity and ownership of the mark as well as of the exclusive right to use the mark nationwide on or in connection with the goods or services listed in the registration. These presumptions may be rebutted in the court proceedings.

Generally, the court will consider evidence addressing various factors to determine whether there is a likelihood of confusion among consumers. The key factors considered in most cases are the degree of similarity between the marks at issue and whether the parties’ goods and/or services are sufficiently related that consumers are likely to assume (mistakenly) that they come from a common source.

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Doctor Who also has a race of beings called the Eternals, who also have nothing in common with the Marvel characters apart from being immortal and superpowered…

You’re infringing the trademark if a typical member of Marvel’s target audience might be confused as to whether your book is about the Marvel characters, or is an official Marvel product. My understanding is that confusion is more likely if you mention “Eternal” or “Eternals” in the title or the blurb than if you just mention them in the text of the book.

Marvel are owned by Disney nowadays, who are very protective of their rights. Trademark law, at least in the USA, has a “use it or lose it” rule - if a trademark owner sees someone infringing on their mark, they have to take action to stop the infringement. If they don’t, future infringers can point to this lack of action as evidence that the owner doesn’t care about protecting the mark. If a court agrees with that assessment, they can decide to invalidate the mark.

So I guess this is a “do you feel lucky, punk?” situation - are you sufficiently attached to the name to want to put yourself in the sights of a company with deep pockets and a legal obligation to make you stop if they notice what you’re doing?

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Yeah that’s what I figured. And I never do feel lucky, so I guess changing the title will hopefully get Disney’s bots to leave me alone. I mean they have for a year, and I found other books using the name, but I highly doubt it’s worth the risk.

Thanks!

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