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By: 1Wrestling.com
8/12/2004 11:10:26 AM
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WWE VS. MARVEL COMICS...WINNER GETS "HULK"
Newsarama.com reports that Hulk Hogan (aka,
Terry Bollea) and his former employer, WWE/World Wrestling Entertainment
(formerly WWF/World Wresting Federation, owned by Titan Sports, but herein
referred to as the WWE) have been in a legal battle over the use of the name
“Hulk Hogan” with Marvel Characters for the past year, after Marvel filed
suit against Bollea, claiming trademark infringement and demanding a
$100,000 decision from the court.
Last month, the WWE fired back at Marvel, challenging their claim to the
name, as well as Marvel’s claim that the WWE could no longer use the name
(or the terms “Hulkamania” and “Hulkster”).
It all started when Terry Bollea, looking to make a name for himself as a
wrestler, was christened “Hulk Hogan,” in 1979 when he was recruited to the
WWE by Vince McMahon Sr. At 6’ 8” and 303 lbs, the name fit. In 1980, Hogan
defeated Andre the Giant, cementing him as the new generation of wrestling
superstar.
Bollea, as Hulk Hogan and slowly started to amass a large fan following, not
to mention licensing and merchandising opportunities. In the early ‘80s,
Hulk Hogan was “the” wrestler – the crossover success that helped start what
the WWE reaps today – mainstream acceptance of professional wrestling.
In 1985, Marvel claimed that the name “Hulk Hogan,” violated its trademark
on the name “The Incredible Hulk.” The WWE claims that, at the time, as its
business was rapidly expanding, it had no interest in engaging Marvel in a
lengthy court fight over the name, and therefore entered an agreement with
Marvel that same year, which allowed it to use the names Hulk Hogan,
Hulkamania, and “The Hulkster” in exchange for royalty payment. The
agreement between the WWE and Marvel in 1985 was for worldwide use in all
media, including recorded events, film, television, toys, books,
videocassettes and discs. Naturally, the contract stipulated that the WWE
could not use the word “incredible” in connection with Hulk Hogan.
Other stipulations of the contract called for the WWE to never allow the
word “Hulk” to be larger than “Hogan;” any logo created for Bollea must not
in any way resemble Marvel’s logo for the Hulk; the WWE can not register
“Hulk Hogan” as a trademark; the WWE had to agree that Marvel owned the mark
for “Hulk Hogan;” the WWE agreed not to challenge Marvel’s claim to the name
“Hulk Hogan;” and Bollea could not appear as Hulk Hogan in comic books.
The royalty that the WWE paid Marvel for the use? 0.90 of 1% of the reported
gross on projects involving Hulk Hogan; 10% of the monies the WWE derives
from the monies received by Bollea as Hulk Hogan (or 10% of the monies
received by Bollea if the WWE did not derive any money from Bollea, for
example, if no agency fee was collected for a particular project by the WWE);
and $100 for each wrestling match in which Bollea appeared as Hulk Hogan.
The crux of Marvel’s claim against the WWE is the date of the agreement
between the two. The term of the license began on July 9, 1984, and would
extended for 20 years or until Bollea left wrestling, whichever came first.
The WWE claims that the date of the agreement was actually March 25, 1985.
Marvel’s view is that 20 years was up last month (and the WWE has been in
violation of the agreement since), while the WWE claims that there’s still
seven months to go before the agreement ends.
The agreement between the WWE and Marvel, struck in 1985 (or 1984, depending
on whose side you’re on) gets murky, given that Bollea left wrestling from
1992 until 1994 to explore other opportunities. When he returned to
wrestling in ’94, he did it with the WWE’s chief competitor, the World
Championship Wrestling (WCW). Signing with the WCW prompted Bollea and his
new company to enter into a new agreement with Marvel, essentially identical
to his agreement with Marvel from his time with the WWE.
The term of the agreement between Marvel and the WCW was for one year,
renewable; and was renewed three times, which, the WWE claims, collectively
extended the agreement through May 30th, 2002 (the WWE bought the WCW in
2000, and the WCW ceased operations in 2001). A subsidiuary of the WWE, WCW,
Inc. acquired all of the old WCW intellectual property in 2001, while Bollea
entered into a contract to appear as Hulk Higan in early 2002, and renewed
in 2003. On June 26th, 2003, Bollea terminated his contract with the WWE,
and stopped performing for the company.
The WWE is in the planning stages of a massive exploitation of its library
of wrestling events, which will include a video-on-demand service featuring,
among numerous others, matches between Hulk Hogan and other wrestlers.
Marvel has informed the WWE that it can no longer use the agreed upon names
after the expiration of the 1985 contract, the term of which, according to
Marvel, expired on July 6th of this year.
According to the WWE, Marvel didn’t wait to make the claim that the WWE was
in violation until after the 20 year term expired. As stated by the WWE in
its complaint, Marvel’s Senior Litigation Attorney, Eli Bard told the WWE in
April of 2003 (over a year prior to the earliest expiration date of the 1985
agreement), that the WWE was using the Hulk Hogan mark without permission,
and in violation of Marvel’s IP rights. Marvel demanded that the WWE cease
and desist from further use of the name. Under the 1985 contract though,
Marvel was prohibited from making any claim against the WWE or Bollea during
the term.
Again, according to the WWE, Bard may have been playing good lawyer/bad
lawyer all in one, demanding a C&D from the WWE in regards to Hulk Hogan,
wile at the same time, proposing a licensing deal with the WWE (again, this
was in 2003, while the 1985 agreement was in full effect, according to the
WWE). The WWE rejected Bard’s offer and reminded the company of the 1985
agreement. Marvel conceded.
Since that time though, the WWE claims that Marvel has insisted that it must
cease use of the agreed upon terms at the expiration of the 1985 term.
According to the WWE, Marvel acknowledged that both the WWE and the WCW, in
entering agreements with Marvel for the use of the terms would create
copyrighted works bearing the name “Hulk Hogan,” as well as “Hulkster” and “Hulkamania.”
The WWE claims that Marvel made no limitations on its rights as the
copyright owner of Hulk Hogan images and performances.
In short, the WWE (and WCW) licensed a name and terms from Marvel, and
subsequently created works (performances, imagery) with said licensed names
and terms. The WWE claims that it is the owner of the copyrighted material,
which contains the names and terms licensed from Marvel, and should be
allowed to use them as they see fit.
While the WWE cites Copyright law to make the above claim, the sleeper hold
of its argument comes in the form of its allegation that the “Marvel” that
made the agreement in 1985 (Marvel Entertainment Group) no longer exists.
In correspondence over the past years of the disagreement between the two
parties, the WWE claims it has asked Marvel numerous times for documentation
that it in fact owns the name “Hulk Hogan.” The WWE claims that the current
iteration of Marvel it is dealing with, “Marvel Characters, Inc.” cannot
prove that it is the legal successor to 1985 agreement or the owner of the
Hulk Hogan trademark.
WWE is asking: a) that it be declared the legal owner of the “Hulk Hogan”
mark (and thus be allowed to fully exploit it as it sees fit); b) that the
contract term between the WWE and Marvel expire on March 25th, 2005; and c)
a final declaration by the court as to whether or not Marvel actually owns
the mark, “Hulk Hogan.”
Both Marvel and the WWE will take part in a case management conference on
September 17th in regards to the WWE vs. Marvel issue. Marvel’s suit against
Bollea continues, with all discovery due to the Court by October 31st, 2004.
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