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In a preemptive move, Studio JMS has sued a self-publisher who threatened legal action over a character in J. Michael Straczynski’s Sidekick. The dispute centers on the Red Cowl, the former masked mentor of the protagonist in the upcoming series from Joe’s Comics and Image Comics.
Straczynski and Image Comics Publisher Eric Stephenson received a cease-and-desist notice in late May from an attorney representing Richard A. Hamilton of Dial “C” for Comics, insisting that the Cowl (as he was then called) infringes on his client’s trademark and copyright for a costumed character of the same name in the series Miserable Dastards.
According to the lawsuit, filed late last month in federal court in Los Angeles, despite seeing no similarities between the two characters, Studio JMS changed the name to the Red Cowl in hopes of arriving at an “amicable resolution,” and “for other creative reasons.” It’s when Hamilton’s lawyer was notified of the alteration that the conflict got interesting — or at least extremely prickly.
In a response dated June 14, Hamilton’s counsel Ira Cohen called the name change “patently unsatisfactory,” asking Studios JMS’s attorneys, “Do you honestly and seriously contend that, for example, ‘Red Batman,’ or ‘Red Hornet,’ or ‘Red Lantern,’ as comic book characters, would be countenanced or suffered for a minute? We think not.”
He then took aim at Straczynski directly, noting that in an interview the writer “went as far as to imply the character was always named ‘Red Cowl,’ and that the name was plot/character driven, rather than a knee-jerk reaction to our initial cease and desist letter herein.” Cohen also accused Studio JMS of unlawfully appropriating and copying Hamilton’s trademarked name and copyright images of “a comic book duo.” “In short, virtually the entire Hamiltonian ‘The Cowl’ comic book character package has been knocked off,” he continued, “such that the copying not only is arrogant, but is as transparent as a plastic comic book sleeve.”
He wasn’t done quite yet, however, as he threatened to make Studio JMS “poster children” for enhanced damages, meaning the court would have the discretion to levy an award of up to three times that of compensatory damages (it’s usually reserved for instances of willful infringement). Cohen demanded that JMS stop any advertising, sales or promotion involving the Red Cowl, recall any infringing goods and hand them over to his client, giving a June 21 deadline for a response.That’s the day Studio JMS filed its lawsuit.
In its complaint, JMS notes that similarly named superheroes — among them, Spider-Man and The Spider, and Swamp Thing and Man-Thing — “have co-existed without confusion for decades,” and argues the only common element between Hamilton’s Cowl and Straczynski’s Red Cowl is a hood or cowl, an article of clothing they share with countless other characters.
In addition to seeking a ruling that the Red Cowl doesn’t infringe upon Hamilton’s rights, JMS asks the court to cancel the defendant’s trademark registration for the Cowl, insisting it was issued improperly due to discrepancies in the filing date and the mark’s first use in commerce. In addition, JMS claims Hamilton improperly submitted a mock-up of The Cowl cover, and not the actual comic book, which apparently was never published or distributed. The plaintiff argues that even if Hamilton did publish a single issue of The Cowl, it doesn’t meet the standards for trademark registration, which require that that the title be used for a series of creative works.
Sidekick #1, by Straczynski and Tom Mandrake, is set for release on Aug. 14.