Trademark
A Trademark is a name, phrase or symbol used by a company to distinguish their goods or services from those of other companies in a similar range, preventing "brand confusion". Trademarks are indicated by a ™ symbol, or in the case of Registered Trademarks, a ® symbol. Hasbro's ability to legally secure a trademark dictates what proper noun they will use to describe a toy, gimmick, or line.
It is not the same thing as a copyright.
Technically, Hasbro does not strictly need to claim trademarks for the character names applied to individual toys. Some other companies do not claim them, though this is most often in the case of short-lived licensed lines based on movies or video games. But, as Hasbro recognizes the advantages of maintaining established characters (or character types) in the long term, they wish to be able to hold exclusive claim those names and use them as long as possible without fear of litigation from or loss to another company.
Trademark law is full of gray areas and complexity; otherwise lawyers couldn't charge exorbitant sums for their services in that field. The whims of the judges who look at the cases also play into the end results. However, there are several guidelines and general rules that can be followed to understand why items end up named like they do.
- (Note: This article applies largely to how trademark affects Hasbro product in the United States. Trademark law varies from country to country, and TakaraTomy has different practices in this area than Hasbro because of this—most notably a general lack of worry about protecting individual character names.)
Trademark basics
Trademarks are categorized into groups of products/services, so when a company applies for a trademark, lawyers compare them to similar marks within the same category, not across all products ever. Transformers toys fall under Category #028, "Toys and Sporting Goods."
For an example as to how this works, during the time Hasbro was unable to mark a Transformers toy as "Bumblebee", Hasbro licensee Fun-4-All was able to release a keychain of Bumblebee trademarked as such, as keychains fall under a separate category than the one Transformers toys do. Similarly, the character could be named such within a comic book, since the comic company was not actually claiming that trademark within that field. Were they to release a comic “series” called “Bumblebee”, though, a trademark search and claim for comics would be needed.
This is also why there can be “Megatron” brand car batteries manufactured by another company; obviously, Hasbro does not make car batteries or anything along the lines of automobile parts, so the odds of “brand confusion” are exceedingly remote.
Often, companies that own character-based IP (intellectual property) will apply for trademarks across a vast swath of categories to maximize the range of product they can use that name for. Around the time of Robots in Disguise, Konami brought the wildly successful Japanese collectible card game franchise Yu-Gi-Oh! to the US; among the trademarks applied for across multiple categories was "Space Megatron," the name of one of the many many many cards from the Japanese game (which was called simply “Megatron” in Japan). Some fans, upon hearing this, believed that Hasbro was in danger of losing the “Megatron” name, but this seems highly unlikely, as Hasbro had made steady and repeated use of the name over the course of the previous decade (over a dozen toys branded “Megatron” between 1990 and 2001, plus media association thanks to five years of the name belonging to a central villain of the associated TV shows). “Space Megatron” remained the name of the card from the CCG, likely because Hasbro had no CCG claims then, but no associated merchandise has appeared bearing that name. It is unknown if any “Megatron”-variant cards have been made since (we don’t know from Yu-Gi-Oh!).
Protection and loss
Once a trademark is claimed, protection hinges primarily on usage. (There are, of course, other factors. This is a legal matter, after all.) A company cannot claim a trademark, then not make use of it. That probably gets them fined. Trademark protection typically lasts roughly a year, though this (like most anything involving trademark law) is not ironclad. (See “Notable cases” below). The longer and more frequently a company uses a trademark, the stronger their case becomes to retain ownership of it should it be contested by a competitor.
Defensibility is also determined by the name itself and its distinctive qualities regarding to what it’s being applied. One could not reasonably expect to claim trademark of “Apple” as a product name for apples. But for, say, computers, which would not otherwise be referred to as an “apple”, that works. In regards to Transformers, "Car" would be basically impossible to defend successfully as a distinct trademark. “Carblast”, however, is fairly strong, being a made-up compound word highly unlikely to be used elsewhere. “Autobot Carblast” is even more defensible, thanks to the addition of a clearly nonsensical word, which is by itself very strong, like “Rodimus” or “Cybertron”.
Registered trademarks are a stronger level of protection, thanks to a more involved process (and some more fees), but are not by any means absolute protection. Even a registered trademark can be lost due to lack of use (abandonment) or a successful challenge from another company.
Trademarks can also be lost by allowing a term to become a “genericized trademark”—effectively, letting their mark become a common term, like “aspirin” for acetylsalicylic acid, “kleenex” for facial tissues or “jell-o” for processed, gelatinized pig hooves. Though these terms are all trademarks owned by their originators, they are marks that may also be used freely by companies that are not Bayer, Kleenex and Kraft Foods (respectively) to describe their product.
Recently, Hasbro has become very concerned about the mark “Transformers” becoming genericized, which would allow competitors to use the term “transformer” as a generic term for their shape-shifting robot toys, creating further confusion among parents when asked to buy a “Transformer”. Hasbro has taken various methods of preventing this. For example, the use of “transform” as a verb when being used to describe product is almost strictly forbidden for both Hasbro’s own products (like packaging call-outs) and by licensees’ products (such as game guides); synonyms like “convert” are used instead. This does not affect character dialogue within fiction, though.
Because Hasbro has been shoring up various infrequently used “common word” names in recent years by adding prefixes (such as “Autobot Tracks” or “Decepticon Frenzy”), many fans have taken to believe that this is all it takes to reclaim a name lost to another company. This is not true. If it was, then a competitor such as Bandai could release a line of robot toys called “Super Transformers” with an “Optimus Prime Ranger” toy and get away with it. The addition of extra words to these old names is primarily to strengthen the claim to a name that is currently (likely) uncontested and Hasbro is likely to try and use often in the future, but would be harder to defend as a single word that has previously seen very little use, like “Ratchet”.
Notable/unusual cases
- (Note: This is not a list of every lost trademark ever, just some instances with unusual or interesting twists.)
- In 2001, Hasbro trademarked “Skyfire” for use in the Robots in Disguise line. However, at the same time, competitor Mattel applied for a registered trademark on the name for a vehicle/accessory in their Max Steel toy line. Without any past usage to call on to contend Mattel’s claim, Hasbro lost the trademark for “Skyfire” to the stronger registered claim within a very short time frame. This resulted in the name “Sky Blast”, used first on an Armada Mini-Con, then for the Energon Omnicon Skyblast, who is a clear homage to Generation 1 “Skyfire” from the cartoon.
- In 2005, Fun Publications was forced to change the name of the BotCon 2005 Outback toy name to “Fallback”. The Outback Steakhouse restaurant chain has successfully applied for “Outback” across a vast number of categories, encompassing a wide variety of merchandise. Since Hasbro had not used the name for a product since 1986, there was no way in hell of contesting the claim of the widely known chain.
- As mentioned above, “Bumblebee” remained unavailable to Hasbro for many years. The name was being used as a registered trademark by a company called Playcore for their "Buzz the Bumble Bee" swing as of 2003, and as Hasbro had not used the name for a toy since 1995, their case to contest was likely a weak one. (It should be noted Hasbro's IP lawyers seem overcautious at times.) However, the trademark was reclaimed by 2006, most likely due to the association of it belonging to a principle character in the big, huge, large, big-deal live-action movie, with a metric buttload of associated merchandise planned across a great many categories. The movie’s release date being pushed back a year meant that the first “Bumblebee”-branded Transformers toy in over a decade was part of the Classics line, though this is a minor detail. (It is unknown if Playcore is still producing their swing under that name.)
- According to Hasbro copy writer Forest Lee at BotCon 2006, Hasbro's IP lawyers were initially skittish about specifically identifying the "Matrix of Leadership" as such on the packaging for the 20th Anniversary version of Optimus Prime, as they were unaware of the fictional history of the term "Matrix" within the brand, and feared confusion with the series of severely overrated movies. They were sufficiently convinced to allow the term to be used in that instance... but it appears that the term "All Spark" may supplant "Matrix" in future "new" Transformers series, what with it being a made-up term (and again, association with the live-action film MacGuffin).
