WWE VS. MARVEL COMICS...WINNER GETS HULK

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WWE VS. MARVEL COMICS...WINNER GETS HULK
By: 1Wrestling.com
8/12/2004 11:10:26 AM

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 Marvels 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 Marvels 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 Marvels 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 Marvels 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. Marvels 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 theres 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 youre 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 WWEs 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 didnt 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, Marvels 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 Marvels 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 Bards 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. Marvels suit against Bollea continues, with all discovery due to the Court by October 31st, 2004.