She-Hulk vs Titania, Part 2
Updated: May 4
If you caught my last blog or Instagram post, you know that I was very interested to see how the She-Hulk alleged trademark infringement lawsuit would play out. In episode 5, the plot dove more into the business and legal issues associated with use of the She-Hulk name and the alleged infringement.
Titania somehow* obtained a trademark registration for the term She-Hulk in connection with products in the beauty industry. Jennifer Walters, aka She-Hulk, attended the product launch with her entourage and was shocked to see her moniker all over the place. The law firm managing partner and Jennifer's friends and family were all confused about whether she had begun a new business venture. Note that actual consumer confusion as to the source is a necessary element to show trademark infringement. So really, I was surprised that the Disney+ folks did not focus on She-Hulk suing Titania for misuse of her name and intentional consumer confusion.
Nonetheless, the lawsuit proceeded, and Walters took to heart the old adage that an attorney who represents herself has a fool for a client. She engaged a well-dressed attorney who is well-versed in trademark law. In order to show that no infringement occurred, Walters' lawyer brought a stream of witnesses** to testify about how they believed the big green powerful woman was indeed She-Hulk. Walters summoned up her dating profile, where she displayed the She-Hulk name and a tagline that she was "Mean, Green, and Straight Poured into These Jeans." Sure enough, the dates' testimony was enough to convince the judge that the lawsuit should be dismissed on summary judgment, because Titania couldn't sue She-Hulk for using her own name.
It was interesting to me that Walters' lawyer didn't mention the fact that there was no perceived overlap in goods or services: while She-Hulk is known for her super-strength in a crisis, the trademark registration was for beauty products. So in the worst case scenario, even if Walters didn't file a counter-suit accusing Titania of trademark infringement for trading off of her famous name and confusing consumers as to whether the products originated from She-Hulk or Titania, Walters' lawyer could have argued that beauty products are very different from superhuman powers, and therefore the trademark could co-exist while Walters was still known as She-Hulk.
I can't wait to see what the next episode brings!
*although the current trademark process takes at least a year under the best-case scenario
** the timing of the lawsuit being served and the parties jumping into court is also suspect... parties have a month or so to file a response after they are served, and there is a sometimes lengthy discovery and motions practice before the parties actually argue the case before a judge.