Hasbro vs DC: Dawn of Litigation

At the tail end of last month, news broke that Hasbro was taking DC Comics to court over DC’s marketing of toys featuring a character named Bumblebee. This Bumblebee is distinct from the friendly Autobot everyone’s familiar with–she’s a Teen Titan, and definitely not a robot–but Hasbro has still taken the stance that the name itself is a problem. This was met with a flurry of articles that sort of skimmed the surface of why and an even larger flurry of derisive internet comments to the tune of “lol greedy Hasbro.” Why is it really happening, though? I mean, sure, money, but there’s more to it than that. It’s about protection of assets.

Pictured left to right: Mirage, Hound, Sideswipe, Optimus Prime, Hot Rod, Drift, and Bumblebee. You can see the confusion.

Hasbro is taking DC to court for the same reason that Lego reminds you that it makes a product called Lego bricks, for the same reason that Adobe reminds you that Photoshop isn’t a verb, and for the same reason Nintendo fought for the popularization of the phrase “game console” once upon a time. The concept is called genericization or trademark erosion. Often, when a product is the leader in its field by a wide margin, that product becomes so ubiquitous that the product’s brand name comes to refer to the thing itself–for instance, thermal drink containers are often called thermoses whether Thermos makes them or not. The same holds true for Kleenex and tissues. Johnson & Johnson even changed the lyrics of their Band-Aid jingle to include the word brand, for this very distinction!

This is something Hasbro has a lot of experience with, having the licenses for Star Wars and Marvel toys both. Often Marvel toys with less distinctive names are branded “Marvel’s…” on the front of the package, for the sake of clarity. A good example of this is any toy of the bow-wielding Avenger Hawkeye–prior to the advent of the MCU, if you asked a random person on the street who they thought of when you mentioned the name Hawkeye, they’d most likely think of Hawkeye Pierce, the M.A.S.H. character. Even today that’s still likely–M.A.S.H. has not receded so far in the popular consciousness as to be forgotten. Because this is a possibility, Hasbro and Marvel both play it safe and apply the Marvel brand to toys and merchandise featuring the character–this keeps 20th Century Fox, owners of the M.A.S.H. franchise, from litigating them. In other words, Hasbro does this specifically so that they cannot be caught in the same situation that they’ve currently ensnared DC in.

Marvel’s Hawkeye, legally distinct from the M.A.S.H. character Hawkeye Pierce.

What’s interesting here, and what a lot of people have advanced in response, is that Bumblebee, the DC character, has actually existed for longer than Bumblebee the Transformer! While that’s certainly true–DC has a seven year head start on this–it’s not really about how long the character has existed. It’s more about the level of cultural penetration and the timing. Hasbro owns the trademark on the name Bumblebee currently, as it has, on and off, since 1983. The most recent renewal of the trademark occurred in December 2015, after DC had already announced their new DC Superhero Girls line.

How does that figure in? Well, Hasbro has a strong case for usage of the name for merchandise. They’ve been making toys of the little yellow ‘bot for thirty-five years, or thereabouts. There are currently so many iterations of the character that the toys themselves generally have to be divided by specific Transformers sub-line for cataloguing just so that the sheer number of them does not overwhelm. By contrast, DC’s Bumblebee has only ever been a minor side character in the Teen Titans until recently–she would occasionally get bit parts in cartoons, but had only had one toy prior to being included in the DC Superhero Girls franchise–even Mattel’s comprehensive DC Universe Classics line, with its intense focus on seventies and early eighties era characters, didn’t deign to include her. Since then, however, DC has capitalized on the character’s greater exposure, releasing both a Bombshells statue and action figure.

Is anyone really going to confuse the two? No, but that’s also not really the point. Hasbro has been burnt by this before–many, many times. Characters that Hasbro has had to rename due to loss of trademarks over the years include Hot Rod, Bluestreak, Shockwave, Ravage, Sideswipe, and yes, Bumblebee. They have very specifically lost that name before, and they’re not about to let it happen again.

What happened then? Well, with the end of the Generation 2 era of Transformers in the mid-90s, Hasbro stopped making Bumblebee toys. They were embarking on a new iteration of the franchise, called Beast Wars, and that franchise, with only a few exceptions, didn’t really use the existing names of Transformers characters, since most of those characters had vehicle-specific names. As such, when Hasbro wanted to return to making Generation 1 themed toys in the early 2000s, they discovered that another company, Playcore, had trademarked the name “Buzz the Bumble Bee” for a swing set, which fell under the legal definition of toys. This prevented the registration of the trademark by Hasbro at the time, and when they tried again in 2005 and 2006, two more companies stepped in to battle for the name.

This Bumblebee/Spike two-pack from the early 2000s is specifically labeled “Autobot Espionage Team” to avoid using the then un-trademarked Bumblebee name.

Rather than go through a long process, Hasbro backed off, using the name in a non-trademarked fashion, until the supremacy of their film franchise ensured brand recognition. Thus, they were able to successfully land the name in 2015, and now, having it (as well as having reacquired several of their other lost names over the ensuing years), they’re fervently inclined to protect it–because not doing so could cost them millions. It’s entirely likely that this will settle out of court, and in any case, Hasbro’s own brand practices have already provided the way around it–DC and Mattel can simply label future toys featuring their Bumblebee character as “DC Comics’ Bumblebee.”

Nola Pfau

Nola Pfau

Nola is a bad influence. She can be found on twitter at @nolapfau, where she's usually making bad (really, absolutely terrible) jokes and occasionally sharing adorable pictures of her dog.