WHAT'S THE DEAL WITH VALIANT??? (Forum Discussion)

[greg]

THIS TOPIC WAS CREATED TO DISCUSS THIS DOCUMENT

First announced here:
http://www.valiantfans.com/forum/viewtopic.php?t=16237



What's the deal with VALIANT?

SUMMARY: The Acclaim bankruptcy asset auction in April 2005 transferred all of the Valiant images, characters, stories, and content of Valiant and Acclaim comic universe(s) to the ownership of Valiant Entertainment, Inc., VEI, also known as the Kothari/Shamdasani Group from the Acclaim auction documents.

There is no question regarding the legal ownership of all Valiant copyright content from the 1990s, it now belongs to VEI, that is, all images, characters, stories. In addition, all rights to future stories, comics, products, etc., which use Valiant characters from the 1990s also belong to VEI, without question. Characters of Magnus, Solar, and Turok were licenses in the 1990s from Gold Key / Western / Dell, and they are owned today by Random House.

A legal entity calling itself "Valiant Intellectual Properties" (VIP) did not attend the Acclaim bankruptcy auction, did not bid for the Valiant copyrights, but filed for the trademarks to the names of a few Valiant characters that they cannot legally associate with any prior images, stories, or any Valiant content. If VIP were to be awarded any of these trademarks, by U.S. law they would have to create completely new and unrelated (non-Valiant) uses for them. Despite there being months of time leading up to the Acclaim asset auction, VIP filed for these trademarks two weeks prior to the auction. VIP applications were not present in the USPTO website database at the time of the auction due to the time delay between filing and the update of the website database. Additionally, the creation/publication of any VIP products would inevitably also announce their identity, which has been kept secret for more than two years.

This table shows what is known as of August 2007. The U.S. Patent & Trademark office will decide which party will be awarded the rights to the trademarks.


* VEI / VIP - are two separate, unrelated parties who have applied for the trademarks.
VEI - Valiant Entertainment, Inc., which paid $700,000 (or more) for the Valiant and Acclaim copyrights at the Acclaim asset auction in April 2005
VIP - Valiant Intellectual Properties, which paid $4,225 for 13 trademark application fees two weeks ahead of the prior announced Acclaim asset auction.

** Despite some confusion, trademarks are the names (words) only. For example, the trademark for "Eternal Warrior" is nothing more than the words. Valiant's Eternal Warrior, Gilad, is a character that is owned by VEI, his image is owned by VEI, and his stories are owned by VEI. If VEI is awarded the Eternal Warrior trademark, they will be able to bring the VEI character, VEI likeness, and VEI stories back together under the trademark title, "Eternal Warrior". If VIP were to be awarded the Eternal Warrior trademark, VIP would be required by law to make up a new character who does not look like, act like, or have any connection to the Eternal Warrior that Valiant and Acclaim published 1992-1999. In any case, VEI already owns the character of Gilad, all of his likenesses, all stories involving him, and all rights to create new stories or products for Gilad in the future. The name of the Gilad comic book published by VEI would change, "Gilad the Immortal" (as an example). If VIP were awarded the trademark, the VIP "Eternal Warrior" comic books would have no prior Valiant Eternal Warrior content. The other disputed trademarks would have similar results to this scenario.

VEI - Valiant Entertainment, Inc., has a website at www.valiantentertainment.com and email at inquiries@valiantentertainment.com

VIP - Valiant Intellectual Properties does not have a website nor email address. They are represented only by their lawyer, Michael Lovitz.

This document was created by ValiantComics.com administrator (1999-2007), Greg Holland,
and is an attempt at a factual summarization of the current Valiant landscape. - August 2007

...document as an image...
http://www.valiantfans.com/ValiantSumma ... er2007.jpg

...document as a .pdf...
http://www.valiantfans.com/ValiantSumma ... er2007.pdf

[iccarus]

Thanks for putting this together. This is the first time I've actually felt like I sort of understand wtf is going on with this mess.

[greg]

Thanks for putting this together. This is the first time I've actually felt like I sort of understand wtf is going on with this mess.

No problem... that was the whole reason I did it!

[Asharad]

I'm a newbie here, yet I've always been a Valiant fan. I saw the ad for the new Harbinger book, and was very excited. Now I'm depressed. This money grab by VIP is sick. They have no intention of offering a product to the public. The greedy mudsuckers expect VEI buy the trademarks from VIP.

Sigh. Valiant died when Acclaim took over. I shouldn't have gotten so excited over the new harbinger book.

[greg]

I'm a newbie here, yet I've always been a Valiant fan. I saw the ad for the new Harbinger book, and was very excited. Now I'm depressed. This money grab by VIP is sick. They have no intention of offering a product to the public. The greedy mudsuckers expect VEI buy the trademarks from VIP.

Sigh. Valiant died when Acclaim took over. I shouldn't have gotten so excited over the new harbinger book.

Everything you loved about Harbinger is owned by VEI,
and the new book includes a new story by Jim Shooter.

Things are good!

http://www.amazon.com/Harbinger-Beginni ... 0979640903

[Sting]

Not for nothing but $4,225 for the trademarks seems like it was a good purchase (buisness wise) I don't support VIP at all but it seems that someone has business sense to make these trademark purchases.

Common sense seems like they will stand to make a lot more than this to sell them, which is most probably the whole point.

Now I'm not happy that VEI does'nt own everthing but if I could buy something and sell it in a short period of time for a lot more then I would more than likely go for it. (As would most other people - See Ebay)

To be clear I'm not looking to suppport VIP in the least , I am simply stating that on paper it seems like they took an opportunity and they stand to make money from it.

[Elveen]

thanks for the clear post Greg.

[x-omatic]

Great info Greg. Thanks.

[greg]

Not for nothing but $4,225 for the trademarks seems like it was a good purchase (buisness wise) I don't support VIP at all but it seems that someone has business sense to make these trademark purchases.

Common sense seems like they will stand to make a lot more than this to sell them, which is most probably the whole point.

Now I'm not happy that VEI does'nt own everthing but if I could buy something and sell it in a short period of time for a lot more then I would more than likely go for it. (As would most other people - See Ebay)

To be clear I'm not looking to suppport VIP in the least , I am simply stating that on paper it seems like they took an opportunity and they stand to make money from it.

While that is very true... there were months to apply for those applications prior to the auction.

Comics are a very small industry, people-wise, basically one where everyone knows everyone else,
and the "last minute business decision" to slip in and apply for trademarks
might make sense financially, but the whole situation looks like a
"screw over whoever legitmately wins all the other pieces at the auction"
aspect that is too dangerous, immoral, or unethical for most REASONABLE people to even consider.

Whatever results, you still look like a "thief in the night", even if it is technically legal,
and if your identity is made known, and those same REASONABLE people
consider you with contempt for what you did, you've just burned A LOT of bridges
in a very small industry.

Dangerous. It's not so much a legal question for the industry,
because the industry isn't a bunch of experts in trademark laws, that's the government.

The industry is people, and it's a question of morals and ethics,
and when you make a good "financial" decision, who's money
are you profiting from, and do you FEEL GOOD about taking it?

When you SEE that someone has dropped their wallet and don't tell them,
and then the 30 days of someone claiming it are LEGALLY expired,
you might be legally free to enjoy what's in the wallet you found...
but you still KNOW who you took it from, you know where they live...
and you do still have to look at yourself in a mirror every day, right?

[schi0249]

Greg, thanks for laying it out in a simple and clear way. For many people, legal jargon is extremely difficult to understand. And like doctors, lawyers often forget they need to "dumb it down" for the average person.

[Zool]

Great post Greg.

[Daniel Jackson]

Great idea to make that an announcement, I know we've had quite a few confused new people lately around here trying to sort this whole mess out.

[superman-prime]

thanks for the clarity

[The Harbinger]

I was wondering what the worst case scenario for VEI will be in their legal battle against vip. It seems like no matter what, vip can't do anything to their stories or hurt them, only hinder the inevitable.

[Darques_Emporium]

So then VEI has the original Valiant stuff which means that VIP can stuff it basically. Why is VIP even trying this? Laws and ownership are laws and ownership.

[greg]

I was wondering what the worst case scenario for VEI will be in their legal battle against vip. It seems like no matter what, vip can't do anything to their stories or hurt them, only hinder the inevitable.

Worst case is that all of the trademarks that are in dispute wind up with VIP.

Everything in this table that belongs to VEI will still belong to VEI, no matter what.



...so VEI would just need to pick new titles for any of the books that needed them.

All the "VALIANT good stuff" (images, storylines, character descriptions, history) already belongs to VEI,
even in the worst case trademark scenario.

[manningfan]

I saw the VIP ashcan and although the materials used were horrid, I didn't think the art was that bad. Still, I don't think it looks like Valiant stuff though.

[The Harbinger]

With VEI definitely having all of that stuff, why doesn't vip team up with vei? maybe they can create some good ideas from the old valiant stuff. The legal battle will evevntually end either VEI or vip (most likely vip)

[Darques_Emporium]

With VEI definitely having all of that stuff, why doesn't vip team up with vei? maybe they can create some good ideas from the old valiant stuff. The legal battle will evevntually end either VEI or vip (most likely vip)

If you ran VEI would you want to team up with someone who is trying to steal stuff right out from under you? I wouldn't trust VIP one bit. They seem to be an accident waiting to happen.

[The Harbinger]

With VEI definitely having all of that stuff, why doesn't vip team up with vei? maybe they can create some good ideas from the old valiant stuff. The legal battle will evevntually end either VEI or vip (most likely vip)

If you ran VEI would you want to team up with someone who is trying to steal stuff right out from under you? I wouldn't trust VIP one bit. They seem to be an accident waiting to happen.

good point

[Daniel Jackson]

With VEI definitely having all of that stuff, why doesn't vip team up with vei? maybe they can create some good ideas from the old valiant stuff. The legal battle will evevntually end either VEI or vip (most likely vip)

If you ran VEI would you want to team up with someone who is trying to steal stuff right out from under you? I wouldn't trust VIP one bit. They seem to be an accident waiting to happen.

good point

Yeah, judging from the lame sneak peek/peak book they put out, it's obvious they didn't much energy in creating anything. They had two years to come up with ideas and concepts and they show up at the con with that monstrosity. Personally, I think it's all about the $$$. They want VEI to get disgusted and just pay them off.

[cjv]

Greg,

Can you clear something up for me.

Do the trademarks refer to ONLY the titles of the comics, or do the refer to the character names within the comic as well?

For example, if we have a "Blood of Heroes" comic (instead of calling it Bloodshot (if VIP wins the TM battle or something) could the character int he comic be called Bloodshot, or is that off limits as well?

I believe it is the latter, but I am not sure.

Sort of like having a Phil Seleski character, but not being able to call him Solar due to TM issues.

Chris

[greg]

Greg,

Can you clear something up for me.

Do the trademarks refer to ONLY the titles of the comics, or do the refer to the character names within the comic as well?

For example, if we have a "Blood of Heroes" comic (instead of calling it Bloodshot (if VIP wins the TM battle or something) could the character int he comic be called Bloodshot, or is that off limits as well?

I believe it is the latter, but I am not sure.

Sort of like having a Phil Seleski character, but not being able to call him Solar due to TM issues.

Chris

First... to talk about Phil Seleski...
I don't really know whether VEI is 100% clear in ownership of Phil Seleski,
even though he is completely a Valiant creation. Because Phil Seleski
was the licensed version (character) of Solar, it's likely that both
VEI and Random House have some legitimate claim to Phil Seleski.
We don't know how the licensing was structured, Random House (Western)
retained the rights to Solar, but there could have been more details
about "derivative" Solars... such as Phil Seleski. VEI definitely owns
the company that created Phil Seleski, but I don't know if that character
isn't owned (at least in part) by both VEI and Random House.
It was a 1990s licensing thing that we don't have all the details for.
It's clear Seleski was inspired by Gold Key's Solar, because we see
that inspiration literally on the pages in Valiant Solar comics...
Phil Seleski is seen reading Gold Key Solar books as his inspiration...
that inspiration could be a legal derivative connection to Gold Key,
and it's possible that is enough to make VEI and Western "joint-owners".

Ok, on to the actual question.

The way trademarks are treated really depends on the actual words used
and the goods & services that are identified by those words (word marks, trade marks).

I know I'm just making things complicated again, but it's what I'm seeing
when I research this topic.
(Everything I say below is my interpretation... and may not be accurate... but I'm trying.)

Let's start with dictionary words... like "harbinger".
You can open a dictionary and find "harbinger" as a regular word.

Because it's in the dictionary and a noun, it can be used in sentences that aren't labels,
but potentially cannot be used as the TITLE of that product.

For example, "Pete Stanchek is a harbinger of the final showdown with Harada".
It doesn't matter who owns a trademark for HARBINGER, because the sentence above
does not LABEL Pete Stanchek as a Harbinger(tm), he's a harbinger (dictionary word).

It gets a little more confusing if we use the dictionary word like this:
"Harbingers in the Valiant universe include Pete Stanchek, Faith Herbert, and John Torkelson."
Is it clear that no matter who owns the trademark for "HARBINGER" that this
is just a use of a dictionary word? It would depend on what the "HARBINGER" trademark is used for.

For example, if someone has associated "HARBINGER" with black-winged angel/demons,
and someone else has associated "HARBINGER" with regular people who have special powers,
then it would still be hard to prove that either company is infringing on the other,
because the word is in the dictionary. It has meaning regardless of trademarks.

The next example is "BLOODSHOT". This word is also in the dictionary,
but as an adjective specifically associate with eyes/eyeballs.

It would probably be easier to show where "bloodshot" is being used in a dictionary sense,
and to show where "Bloodshot" is being used as a label/title/identifier of goods & services.

"Angelo Mortalli's eyes were bloodshot to the point they were solid red."
(It doesn't matter who owns "BLOODSHOT", that is just a dictionary term above.)

"Bloodshot was known for solid red eyes."
This looks more like a label to me (would a trademark officer agree? I don't know).

Would a warrior known for carrying guns and having solid red eyes ever
possibly be confused with a warrior wearing an eye patch? Maybe.

Strangely, because VEI already owns the original image of Bloodshot,
and VIP is trying to create a completely new image for Bloodshot,
the admission that one could possibly be confused with the other
is basically admission that BOTH the images/names are confusing,
and it was VEI's images that came first. That might not help VIP very much.

The same might be true for "Eternal Warrior"... which is a phrase,
but it can also be found, in the dictionary (each word separately).
What is an eternal warrior? By regular old dictionary, it's a warrior who's eternal.
That's not an identifier by itself. So no matter who owns "ETERNAL WARRIOR" trademark,
the sentence "Gilad Anni-padda is an eternal warrior" is just regular dictionary usage.

To say "Gilad Anni-padda is Eternal Warrior" would be to label him.
If VIP owned the trademark for "Eternal Warrior", they could probably claim
that "Gilad Anni-padda is Eternal Warrior" would be infringement, but VIP
probably could not claim "Gilad Anni-padda is an eternal warrior" as infringement.

Ok, finally, for words that have no dictionary meaning, such as "Ninjak" or "Rai",
these would be more easily demonstrated to be labels in ANY usage.
Whoever owned these trademarks could probably claim infringement
easily if the words are used by anyone else to identify their product.

However, there is still the scenario that if VEI used "RAI" to identify the image of Valiant's Rai,
then VIP (if they owned the trademark for "RAI") could claim infringement
because RAI could be confused with their own creation called "RAI".

But, this is still the chicken-and-egg scenario, because if there can be confusion,
then it means that VIP is using a new Rai image that can be confused with VEI's old Rai images.

Which came first? The images. But those are copyrighted, not trademarked.
But how do you show confusion based on the word alone?
It seems easier to prove if the word is not in the dictionary, that's for sure.

Surely, it would be a legal question to tackle... but it seems to me that it would be
very hard for VIP to claim infringement based on confusion with a trademark
without ADMITTING that the confusion comes from likenesses between products.
If there are likenesses between products, which PRODUCT came first? VEI's.

I don't know how VIP could expect to enforce trademark protection
without admitting the same confusion they now claim doesn't exist.
If it's in the dictionary, then it's only useful as a trademark "in context".
What is the context? Images, stories, etc.

Who owned those "confusing" images, stories first? VEI.

I'm sure it's more complicated than that... but it does seem to me that
VIP may be proving no similarity to VEI now... so how could they claim it later?

Just to be clear, this post is all based on my "best guess" at what it means,
and it's very unlikely that I'm correct on every point... I could be wrong about
a bunch of it for all I know. My original post in this topic is my attempt at "factual summary",
this post is basically my "best guess" of the follow-up question.

[schi0249]

I know some of us keep coming back to the DC/Marvel example. But it is one that best fits this scenario. In that case, DC is not allowed to use the title Captain Marvel on the cover of the book. However, the character is still called Captain Marvel. His books usually carry the title Shazm!, which is what Billy says to turn into Captain Marvel. On the other hand, Marvel has/had a book titled Captain Marvel. In that book, the original character was named Captain Mar-Vell.

A precedent was set in that case. And VEI could argue they have the right to use the original names of their copywrights.

[greg]

I know some of us keep coming back to the DC/Marvel example. But it is one that best fits this scenario. In that case, DC is not allowed to use the title Captain Marvel on the cover of the book. However, the character is still called Captain Marvel. His books usually carry the title Shazm!, which is what Billy says to turn into Captain Marvel. On the other hand, Marvel has/had a book titled Captain Marvel. In that book, the original character was named Captain Mar-Vell.

A precedent was set in that case. And VEI could argue they have the right to use the original names of their copyrights.

Excellent point... which is even more reason to believe that VEI wins, at least in part,
regardless of what happens with the trademarks.