(Re)Trademark of Graphic Characters

[Roygbiv666]

So, this question is not about copyright, it's about trademark.

Trademark is just that - a mark in trade, some graphic you stick on your products to let people know you made it. Could be the company name, the product name, or a ... graphic character.

Everybody here knows about the NAMEs "Captain Marvel" and "Daredevil" being used originally by Golden Age comic publishers Fawcett and Lev Gleason, respectively. After the NAMES weren't used any more, Marvel comics developed their own character and called them Captain Marvel and Daredevil, thus establishing trademark on the NAMES.

Trademarks of product (or character names) can be abandoned, then taken up by another company. Fine, got it.

Let's say you had a graphic character like this cute little guy (only, you know, distinctive - I'm not concerned with whether this guys could actually be trademarked, he's just a symbol of a graphic character who COULD be trademarked).

So, he's a comic character in use during the 1940s, company goes belly up, the trademark on the GRAPHIC CHARACTER is abandoned. Someone comes along in 2013 and uses the image in a comic about the character. Does that person's use of the imagery of the character create a trademark that means others cannot use the imagery?

I found some articles on the subject:
http://www.ivanhoffman.com/characters.html
http://www.hg.org/article.asp?id=18088

But I"m not clear on whether the imagery of the graphic character can be reasserted as the name can.

That is, when AC Comics started reprinting PD comics, and featured graphic characters like the Black Terror and Daredevil on covers, did that revived trademark on the graphic characters (i.e. the visual depiction of Black Terror and Daredevil)? And, if so, then could they sue others (like Dynamite Entertainment, say) for trademark infringement of the GRAPHIC CHARACTERS?

[bchat]

That is, when AC Comics started reprinting PD comics, and featured graphic characters like the Black Terror and Daredevil on covers, did that revived trademark on the graphic characters (i.e. the visual depiction of Black Terror and Daredevil)? And, if so, then could they sue others (like Dynamite Entertainment, say) for trademark infringement of the GRAPHIC CHARACTERS?

My opinion is that the answer is "No", only because trademarks laws, according to the US government, cannot remove anything from the Public Domain.  A single specific image of Cat-Man or Daredevil could become a trademark to sell a dvd or some underwear, but the visual design of those characters as they were drawn in the comics belong to everybody now.

[Roygbiv666]

I also found this:
http://www.wpclipart.com/FAQ.html

which kinda indicates trademark can be established on a previously PD subject.

PS I'm still unclear whether "Public Domain" means no intellectual property rights exist (patent, copyright, trademark, etc.) OR just no copyright. I've seen both definitions.

[SuperScrounge]

Wpiclipart FAQ - "And unlike copyright, trademark do not expire."

If that were true then Marvel wouldn't be able to use the names Captain Marvel or Daredevil. The original trademarks on those names lapsed from lack of use.

For years I suscribed to Writer's Digest and they would talk about using trademarked names and commenting that certain trademarks had lapsed (mimeograph, cellophane, etc.) because people used them generically instead of for a specific product. (Oddly enough Bayer's trademark on aspirin lapsed in the US because people used it generically but, apparently, is still a trademark in Canada.) This is why Xerox gets so upset when people talk of "xeroxing" something because Xerox is a company name and a trademark for it's products not a synonym for making copies.

[Roygbiv666]

I think this refers to the fact that copyrights have end dates (or at least they used to), while trademarks do not, providing they are used. They could have said it better, though.

Wpiclipart FAQ - "And unlike copyright, trademark do not expire."

If that were true then Marvel wouldn't be able to use the names Captain Marvel or Daredevil. The original trademarks on those names lapsed from lack of use.

[narfstar]

I think Google embraced googling being a generic word. It became a defacto ad for their company. It would lead more people to go to Google to do their googling even though others are available.