Pryor Cashman Partner Dyan Finguerra-DuCharme, co-chair of the firm's Trademark Group, took part in a Law360 "pop quiz" that looked at how accurately Marvel's She-Hulk: Attorney at Law TV show portrays trademark law.
In "Pop Quiz: How Realistic Is The TM Showdown In 'She-Hulk'?," Dyan was asked:
True or False: Trademark rights belong to the person who 'gets there first.'
In one scene, Walters' cousin asks her to sign merchandise bearing the name "She-Hulk," presumably to sell to fans of the superhero. When Walters tells him that the products are sold by Titania and that she didn't "let" Titania get a trademark for the name, her cousin responds, "You know, Jen, the way trademark works is whoever gets there first, gets it."
But that's not correct, at least in the U.S., says Dyan Finguerra-Ducharme of Pryor Cashman LLP. While some countries, like China, Japan and the European Union countries, give trademark rights to the person who first applies to register the mark, the U.S. generally awards rights to the one who first uses the mark in commerce.
"She's in the U.S., so we're not a first-to-file country; it's a first-to-use," said Finguerra-Ducharme. "So, it was a little surprising to me that they kept making her feel bad for not filing, which is not really what the issue was!"
Answer: False.
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Originally published by Law360
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