Ep 5. - A True Supervillain Uses IP Law to Attack Their Enemies

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In both the real world, and on Marvel Comic’s Earth 616, Intellectual Property Law can be a super weapon to inflict serious pain upon your enemies. On the latest episode of The SuperHuman Law Division Podcast, we look at the legal issues raised when She-Hulk loses the rights to call herself She-Hulk after Titania stakes her claim to that trademarked term.

New Logo… and a Shoutout to our Friends at Law360’s Pro Say Podcast!

We are excited to roll out our new logo for the SuperHuman Law Division Podcast. Thanks to ChangoATX for the great artwork! We love it!!

Also, our friend Amber McKinney had her Law360 Podcast, Pro Say, mentioned in this episode. We’re hoping to get Amber on the show later to do a recap on what she thinks of the show. Congrats Amber!!

Is First to File Really a Thing in Trademark Law?

Jennifer receives a lot of mansplaining on trademark law and who gets to claim ownership of the name She-Hulk. But, is that really how it works?

Lawyers and Firms Should Not Represent Themselves!!

“A person who represents themselves has a fool for a client.” That rule applies in this episode not only to Jennifer, but to the law firm of GLK/H as well. There is a huge conflict of interest in what GLK/H wants with the She-Hulk name versus what Jennifer Walters wants with the name.

Can a Tailor of SuperHuman Clothes be Liable?

We meet Luke, the tailor for superpowered individuals. What are the legal implications of making designer clothes for superheroes, supervillains, and vigilantes?

Share/Contact/Subscribe

Contact us at @glambert, @JoshuaLenon, or @SuperHumanPod and let us know what you think!

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Stay Super Everybody!!

Transcript

Greg Lambert 0:19

Imagine running a superhuman law division of a law firm. That’s exactly what we’re going to talk about here. And we’re going to start off the series by reviewing the new She Hulk Attorney at Law show on Disney plus. So let’s dive into Episode Five, Mean Green and straight poured into these jeans. So I’m Greg Lambert, and alongside with my superhuman law division co counsel, Joshua Lenon. Joshua, what did you think of Episode Five.

Joshua Lenon 0:47

Unfortunately, I think this was another miss when it comes to demonstrating some legal concepts and the practice of law, an enjoyable episode, I’m really loving the show overall. But I do think they’re struggling to find their footing when it comes to some of the legal aspects that are presented in this show.

Greg Lambert 1:08

Interesting I am, I am actually going to kind of give it a pass. In fact, you may have seen the tweet that went out earlier this week where someone was pointing out all the legal issues and and so what I’m going to do is I’m going to hang my hat on the fact that this is earth 616. And the rules of civil procedure in ORS 616 are going to be slightly different. So I’m going to apply that the rules of civil procedure and or 616 are going to be set up so that if it is on Disney plus, everything has to be done within 30 minutes. If it’s at the MCU at the theater, two and a half hours, three hours, you know, so trials are going to be super easy to get a proper trial. So I’m going to be very forgiving. But yeah, there’s there are absolutely a lot of a lot of holes in the legal system in the end she Hulk.

Joshua Lenon 2:11

Yeah. And again, a very enjoyable show. But unfortunately, they’re they’re erring on the side of I think kind of light hearted media presentation. Rather than this is us exploring legal concepts and an almost cartoonish, but relevant environment. Yeah,

Greg Lambert 2:35

yeah. So the legal issue this week continues from last week show which is the she hoped by Titania, the trademark lawsuit. And we actually get our very first product placement. And she Hulk, and that is the mentioning of the pro se podcast from law 360 Law 360 Being a Lexus product, and what I kind of feel famous by association, because Amber McKinney, it has been someone who I have interviewed before for another podcast. And I actually reached out to her and because she is the co host, along with Alex Lawson, who you actually hear Alex’s voice on on the show. And Amber said, Joshua, that she would love to come on this show. And do recap at some point. So I definitely taken her in her

Joshua Lenon 3:37

arm. Yeah, so I think one of the things we haven’t explored is, what resources are they using in terms of creating the show? to really investigate the legal issue or storyline of the week? Yeah, so I think that’d be a fun topic for us to dig into.

Greg Lambert 3:54

Yep. And I can point out that in again in Earth 616 that the the pro se podcast has sponsorships on it, which they do not have in this earth. So again, a little bit a little bit of the multiverse coming into effect creative Lysa. Exactly, exactly. But it was fun. And I know Amber and Alex, were super excited to have their podcast mentioned,

Joshua Lenon 4:21

just like any kind of industry lawyers have our own dedicated media, kind of entities and brands law. 360 is one of them. American legal media or ALM is another one that’s very popular. And we’ll probably see and we’ve mentioned in the past Thomson Reuters Westlaw and LexisNexis popping up throughout this series as well. And so these are things that where lawyers tend to find a lot of their industry specific discussions going on, and a great place for us to again see where the real world and A Marvel 616 collide? Have we explained why it’s 616? I kind of don’t why we keep saying that?

Greg Lambert 5:09

I don’t think we have. Do you want to take that one? Yeah.

Joshua Lenon 5:13

Well, I know what it’s supposed to entail, but there may be more history behind it. So within the Marvel Universe, they often take a look at kind of alternate realities, it might be different timelines, it might be different universes. But again, the fantastical nature of the stories allow them to explore. And one of the Disney media properties that has really tied into this is the cartoon What if where we got to see twists on kind of earlier stories that we’ve seen, my favorite one being the character, Peggy Carter, becoming Captain Britain, yes, rather than the character Steve Rogers becoming Captain America, and how that kind of shifted history. And so the storyline kind of the main storyline that exists both in the comic books and in what we think ours, the Marvel Cinematic Universe is numbered 616, out of the potentially infinite number of universes out there. The one that is kind of consistent the status quo is marvel 616. Yeah, but there have been just a ridiculous number of variations offered by different authors and comic book series, some of which are really kind of entertaining and some which are tragic. Yeah. And so here we see six months six is both entertaining, and tragic when it comes to civil procedure.

Greg Lambert 6:47

Yeah. And I can tell you as someone who collected the what if comic books in the 70s, and 80s, the one consistent theme was, whatever story they were having, ultimately, at the end, something absolutely tragic would always happen. So the universe would implode or a major character would die. So it was kind of a fun way for the comics to look at the multiverse idea and come up with these great kind of one off stories that you know, didn’t affect anything else in the Marvel Universe, but gave the author’s in artists to kind of a fun way to produce something without having any kind of Fallout lasting. Exactly, exactly. So well, the the issue this week, of course, is the all of a sudden, the She Hulk name seems to have been trademarked by our friend Titania, who we met in the the first episode. And what’s what’s kind of funny is you hear a lot of mansplaining going on about trademark law. And both the process server and Jin’s cousin CEDD. seem to want to explain to her see, Jen, you have to understand that, you know, whoever’s the first a trademark is the owner of that of that name. So is Joshua, is that is that true?

Joshua Lenon 8:21

Kind of right? There is a presumption that the first file is the owner. But in normal trademark law, there’s also an objection period. And so there are law firms and legal services that monitor these filings, both electronically and man and manually such that you can object during this legally designated period. Now, what we didn’t see in this episode, for example, was anybody actually looking out for Jennifer Walters and the shithole brand? One of the things presumably, that Tony Stark did when he funded the Avengers, as he brought his legal team with him. And so, Ant Man and Black Widow and all these people had their own army of IP lawyers watching out for their brands. Ironically, She Hulk at a prestigious law firm did not have a lawyer looking out for her brand. And so it’s we’re left wondering, given how kind of recent Jen’s transformation into She Hulk is, has this objection period expired, or can she take advantage of it?

Greg Lambert 9:38

Yeah. And we have a scene where we can show that there is there’s clear confusion on this brand, because her cousin Ched has bought a ton of she hold by Titania merchandise and with the plans of of having Jen sign this with her she holds name because obviously this is her product. So she has to explain that Titania has somehow taken the She Hulk name from her.

Joshua Lenon 10:11

Yeah. Which again, I think is an absolutely brilliant arch villain move in an earning superhero shout it. Yes. Yeah, I just love it.

Greg Lambert 10:22

So the next scene that we have is the pop up store that Titania has, where she has all of her products and people standing in line to come inside to buy this very expensive beauty products. And Jen does something kind of weird, I guess. I guess, if she wasn’t a lawyer, I could see her do it and doing this, but the fact that she’s a lawyer, and she goes in and she just basically asked Titania in person to stop and take it all down that Jen is the She Hulk, and that all related materials and products should be done away with and Titania makes the claim that the name She Hulk is mine. So would you if some if you had someone that was suing someone for trademark, would you go in and just meet face to face in a pop up store?

Joshua Lenon 11:22

Oh, absolutely not. One of the worst things A client can do is go off on their own, and especially communicate with the other party. There are actually rules about lawyers communicating directly with opposing parties when they know they have representation. Yeah. So Jen, as a lawyer should have known that she cannot go and talk to Titania. Instead, she should have been talking directly to titanius. Lawyers, there has been a barrier set up by the professional rules that prohibits that conversation from happening. There’s actually probably a pretty serious malpractice complaint that could be lodged against Jen, for taking this independent action.

Greg Lambert 12:11

Yeah, not not the wisest of decisions. So but I think at this point, I don’t think Jen has it on her mind that she is going to sue Titania, but rather, she’s just trying to be nice. I think she sees it. And again, this is where clients tend to get themselves into trouble by thinking, Oh, well, I if I do this, I’ll just make it go away. And very, very rarely does that happen. Yeah.

Joshua Lenon 12:37

But Jen, as lawyer should have known better. So I think that’s that’s kind of one of the black marks against this episode. Yeah, there’s,

Greg Lambert 12:43

there’s a lot of things. And I don’t think it’s just this episode, I think we’re gonna see that I think we’ve seen it in other episodes where you’re going, you should know better than then to do that. If you if you’re a lawyer, and you’ve passed the bar and you’ve practiced, there’s certain things you shouldn’t do. So

Joshua Lenon 13:00

yeah. And importantly, she’s been served. Right. So she knows there’s representation. Yeah, we’ve got an affidavit or an affiant saying that Jen has received the court documentation, the notice of claim that will have been signed by the lawyers representing Titania. There is no question of fact on whether or not Jen knew this situation.

Greg Lambert 13:22

Yep. So we ended up back at GLK and H. And there’s a there’s a couple of things going on. First of all, Jen, again, kind of talks about this dual personhood that she HK seems to be their own person. And Jennifer Walters is another person and we kind of get this mixed message here. And she says that, you know, I’m just Jennifer Walters, she HK is a thing that happened to me. And you know, and she acts like this, you know, she doesn’t care about the she hold name, but you can clearly tell that she does. I think there’s a there’s a stapler crushing incident there. So you can tell she, you know, this is at least bothering her. But we do finally that we brought up the issue over the past couple of episodes that we have yet to see Nikki, her paralegal that we haven’t seen her office yet. And we finally get to see her office this week. And, man, it is in the middle of a hallway. It is like the worst paralegal office I’ve ever seen. So anybody can just walk. Yeah, that’s the thing is most of the time, you know, paralegals are working on things, especially when you’re that close to the reception area. You want a barrier in your office between any of your client related materials, including the work that a paralegal or secretary or an attorney or librarian or anyone is looking Get or has access to, you want that completely separated. And that is that is just a bad bad setup. She She does have a window, which is in most offices a window is a prime location, location. Yeah, but get

Joshua Lenon 15:16

the window. Everybody else works in the center of the building. Yeah.

Greg Lambert 15:20

I also noticed that she had a little personality on her desk, which we have, we have found lacking in the attorney’s offices. She’s working off of a Windows Surface Pro, but she doesn’t have any monitors. So she’s literally working off the laptop, which is a bad working environment. But on her desk, she does have things like an elephant tape dispenser. She has a dumpster fire toy, which I found kind of funny. She’s got filing cabinets behind her with her own printer, which is a another rarity. In this day and age. Most printers are networked and somewhere in the center to reduce on overhead.

Joshua Lenon 16:02

And also for security. You don’t want a lot of loose paper laying around your law firm. Absolutely.

Greg Lambert 16:06

But she is positioned right outside of Jen’s office. So they can see each other that felt more like a secretarial type location than it did a paralegal location for me.

Joshua Lenon 16:20

Yeah, I agree with you currently, goals produce just as much kind of work product, as lawyers do. Yeah. And so that means they need periods of uninterrupted time where they can sit and focus on their outputs. We have yet to kind of see Nicki do that. She’s done a lot of research on behalf of Jen, for example, when she found Wong’s contact information on LinkedIn. But we haven’t seen her draft anything, for example, right? It could be their unique relationship, or it could be that we are, again, are seeing kind of creative license when it comes to the workplace.

Greg Lambert 16:57

Yep. And we noticed that I haven’t seen a secretary or legal assistant for Jennifer, we’ve only seen Nikki, who’s kind of playing that dual roles. So again, in are 616, and I’m sure with the paying of actors to play certain roles. It’s better to pay someone once for two roles than it is to pay two people two salaries. So which, which you may find also in law firms. The scene before we leave Nikki’s desk, I did, I did find it kind of funny that, you know, pug comes by and asked for the favor to stand in line for the new Iron Man, three sneakers, which are limited to one pair per customer. So he asked Nikki to stand in line with him. But he mentioned the the drip broker, which is a made up name, I tried to google it to see if that was meant something. But basically, it’s just someone who can purchase items and resell them, usually at a at a large markup on this type of blacker, or, you know, semi semi legal illegal market that a lot of these rare products are very popular products tends to create as a secondary market. But then she asked Nikki asked for a favor in return. And that is to meet the person who creates clothing for superheroes. So they go to the boba Cafe, which turns out to be a front for the superhero clothing business. There is a QR code that when you walk in, and I spotted it and clicked on it, and it will take you to a free issue of the Dan Slott run. She Hulk issue number 10 which is Titania. Whoa. And what’s funny is the cover of that is Titania literally taking over the cover of She Hulk. So a lot of you finding this

Joshua Lenon 19:05

stuff. Yeah, it was very, very cool. Well, it seems like a throwaway plot point about standing in line for sneakers, right? It’s just a reason for them to talk. It actually does demonstrate though the value of controlling your intellectual property. Right, Tony Stark’s a state presumably owns the rights to Ironman. And so these limited edition sneakers which are gone for hundreds of dollars, and are so sought after that a big law attorney is willing to waste billable hours standing in line for them. It really just shows the value of controlling your brand and your IP even in a superhero universe. And so it seemed like a bit of a throwaway just to bring these together and advance the subplot that leads us to the BOMA, but I actually found it to be instructive as to why Should have been paying attention to this issue from the beginning.

Greg Lambert 20:02

Yeah, that is why intellectual property is part of the Constitution and the United States. It is such a valued way to make the marketplace somewhat stable, to make sure that people are rewarded for their creativity. It’s a huge part of the commercial environment. In a free market society. It’s one of the things that when you talk about rule of law, IP, intellectual property is part of the rule of law. And you see that is kind of a benchmark for a lot of societies. Yes. Is your creation protected? or can anyone steal that and you see in, you know, in some areas in the world where IP law is not respected, that you have these counterfeits that come in, and that’s kind of kind of where we end up at the boba cafes, you see all of these counterfeits that are out there. And the Avant Jure Zia volunteers, the scene at the courtroom drawing, where she’s holding up the Avengers cup finally make sense. So they were having a lot of fun with the bootleg stuff. Definitely lots of IP issues going going on in this episode.

Joshua Lenon 21:30

And one of the kinds of safe harbors for certain types of infringement can be parody. Like you’re doing something for a a comedy reason or the reinterpretation of the intellectual property brand. I think a bond yours is a real stretch, to be perfectly honest.

Greg Lambert 21:54

What about majors with an eye? Yeah. You know, the cool thing about the scene at the boba cafe was again, and you kind of catch us throughout this whole episode is, Jen in her She Hulk form, and actually, even in her human form, is dressing rather poorly. And so one of the things that you have to think about especially at work, especially at a high end law firm, you know that there is a certain expectation on how you present yourself at work. And so we get to meet the clothes designer in and tailor for the superheroes. Yeah.

Joshua Lenon 22:41

So there are a couple of things that I think are interesting around the issue of John’s attire. From a superhero perspective, it’s definitely implying that superpowers are much more widespread, then we’ve seen like in a lot of the other series, yeah. Yeah, so the Avengers were kind of hit. And they fought aliens, right. But now we’re starting to need to get the implication that there are enough super powered individuals who have a need for specialized clothing, that it not only allows this one tailor, to run what looks like a really successful high end business, but also having to deal with competitors, and being able to turn away clients who he doesn’t think are worthy of his time and attention. So that was the first thing I thought about with this. I’m like, Whoa, okay. They’re really setting up a much wider class of super powered individuals. Yeah. The second thing is that, unfortunately, appearance is a really big issue in the legal industry, and it comes out of a variety of different points. We know that judges, for example, can be very strict on dress codes for lawyers that appear before them, oftentimes mandating certain types of attire and doing so in a way that is not always equitable, right? For example, male lawyers can get by in like a blazer and slacks. But judges have in the past ordered female attorneys to appear not just in a skirt, but also in pantyhose and have been found that because they have this kind of expansive authority in their courtroom, that they get to make these rules. And so appearance in for lawyers in a courtroom can be a bit of a landmine field field of landlines field of mind. And then we also see that it can impact your kind of political options within the law firm itself, especially in a white shoe firm, no pun intended, like GLK and age, how you appear and Jen’s appearance is very much a part of her role. role at the law firm can influence how much support you get from the partners, your career advancement opportunities. And so it seems maybe a bit silly to devote a whole episode to tailoring. But brand is important in these big law environments. Yeah.

Greg Lambert 25:18

And and, on a side note for that, the dress for the office dress codes are very regional and law firms specific. And so if you are and I know of law firms that have New York offices, Chicago offices, Miami offices, and Los Angeles offices, and the dress codes can vary between each of those offices. And in fact, I’ve heard stories of New York partners going down and interviewing attorneys in the Miami office, and how they dressed in Miami and a much hotter environment much more casual, that they had to kind of debrief the New York lawyers to say, they are not going to dress like you dress in the northeast, this is in you can’t hold that against them. That’s that is just a regional preference. And that is okay with us. So it’s, it’s really kind of funny to think about that you can’t just have a one size fits all when it comes to the dress code. So it’s a real pun intended there. Exactly.

Joshua Lenon 26:30

I can give a personal example. Actually, that’s okay. Yeah. So I was invited to speak at a legal Technology Conference in Mexico City, Mexico. And I knew immediately that the the kind of the tech company attire that I often adopt when speaking at technology conferences in north in the United States and Canada, would not fit in. Because what we see for legal professionals there, especially for male legal professionals is very much conformity of black suits, white shirt, colorful ties. And it’s not something that’s like imposed, it’s just what everybody expects. And so I knew when I flew into that conference, that if I wanted to have credibility, I needed to dress the part. And that’s exactly what I did.

Greg Lambert 27:24

Yeah, I wouldn’t have thought of that soon. You think technology you think more casual here in the United States and Canada. So very interesting

Joshua Lenon 27:33

to hear that your jobs entire Yeah.

Greg Lambert 27:37

Have a hoodie, sweatshirt and a hoodie. So the next scene, we’re back at GAO k and h, we have a meeting with Holden Holloway, where he’s having Jen explain, why am I seeing the name She Hulk on Billboard’s out there when that is the face of our superhuman law division that we have put out there for the world. And now he calls it being put in the middle of a of a petty lawsuit, and that their clients don’t like it when law firms can’t handle their own issues, basically telling her she’s got to fight back.

Joshua Lenon 28:19

Yeah, she’s got to clean up this mess. And I do think it sets up the law firm itself, to show us not being maybe necessarily supportive of Jen. Right, this should have been something that was a part of their overall approach. If we’re going to have a superhuman long division and market based upon it, we should have set up the resources like controlling the brand, making sure that we’re in a defensible position against, you know, any claims against us. And instead, it seems very lackadaisical. So either Jen didn’t get the resources that she needed. Or they assumed that Jen would be on top of this and has it Yeah, and I think we’re still really shaking out how the law firm and Jennifer Walters fit together in this episode.

Greg Lambert 29:10

And one of the things that is consistently missing in this series is a solid marketing department. Yes, I just don’t understand where their CMO, the chief marketing officer is, because I think he or she needs to be fired for not one. Prepping Jen for all of her TV interviews, to making sure that they’re protecting any of their brands that are out there and how they’re marketing Jen and the She Hulk name. So I have lots of friends that are marketing professionals and I would love to get their take on what would they do if they were put in charge of the marketing at GE Okay, and ah, so,

Joshua Lenon 29:53

that’d be a fun episode as well. We should do one of those up. Yep.

Greg Lambert 29:56

There is an issue that is brought up Because Holloway makes Mallory book take the case for Jen to protect her rights as she Hulk and thus the firm’s rights to She Hulk are protections for She Hulk. There’s a couple of things and one of them is clearly pointed out that a lawyer should not represent themselves because there’s, you know, the a person who represents themselves has a fool for a client rule. But I will also say this, very rarely, if ever, do law firms take their own cases. So whenever a lawyer has any type of whether it’s personal suit that someone brings against them, or it’s a malpractice suit, 99 times, maybe 99.99 times out of 100, that is given to another law firm to help represent them. And the same rules apply. Typically, law firms do not represent themselves, for the same reason that individuals do not represent themselves. And so I think it’s, you know, as convenient for the TV show, but not something that you would see in our Earth

Joshua Lenon 31:15

now. Well, if you think about it, the interest of JL K and H and Jennifer Walters actually diverge a bit, right? Yes, and so and so there can be a conflict of interest between the interests of the law firm, and she Hulk, when it comes to the liability that’s here. Again, if she Hulk is the face of the superhuman law division, apparently, they’re they’re throwing sheet hook all over their website. They’ve got her on their core, their lawyer directory, all of this. And so theoretically, not only is Jennifer Walters, potentially in trademark violation, but the law firm is as well and can be sued separately. So they should not be handling this in house. Because there will be a point in time, if this trademark stands, that they may have to go their separate legal strategies. And that’s why firms turned to outside counsel or something like that.

Greg Lambert 32:17

Yep. It’s also an I’ve mentioned this on previous episodes, is the thing that will get law firms in trouble is remembering exactly who the client is. And you figure that out in conflicts, you figure that out in the scope of the matter that the law firm is taking on. And so you’re spot on, whose interest is actually is Mallory book going to protect? Is it going to be G O K and H is interest? Or is it going to be Jennifer Walters interest? Because those again, could be different and probably are different. So it’s another reason why usually, lawyers have their own individual counsel and law firms have their own individual counsel, you know, again, we don’t see that here. Apparently, the the rules in are 616 are slightly different. Either that or GL K and H is showing some very poor management of of this matter. So anything else on either Mallory taking the case,

Joshua Lenon 33:21

I’m excited to learn more about Mallory, it looks like we’re gonna set up a bit of a rivalry here. Yeah. Between Mallory and her experience in a big law environment, and Jen’s experience as a government lawyer. And what’s kind of the the stereotypes they live up to as a part of their roles? So I think this is where we really start to see that develop. Yeah,

Greg Lambert 33:46

hopefully they stay friends. Yes. I think that that kind of storyline gets a little old. And so I’m hoping we don’t we don’t necessarily see that here. You want to get into the trial? Yeah, let’s

Joshua Lenon 33:59

get into the trial. All right. Well, the

Greg Lambert 34:00

very first thing I noticed is apparently they were listening to us complaining on our last episode, but they finally started standing when addressing the bench. Thank goodness. And but I think mentioning what you mentioned last week, I think you’re right. I think it was the CGI part because if you noticed she Hulk stayed seated the entire time. There was no up and down

Joshua Lenon 34:26

this time around the time she got up it wasn’t when they said all right.

Greg Lambert 34:30

Yeah. And that was that was it. She stands so no walking around the table. No, you know, no extra CGI. So I think you are right there. Now we’re gonna get into I think some of the issue that what was this hearing?

Joshua Lenon 34:49

So that’s, I think, where we have kind of the biggest legal fail of the episode is unfortunate. We don’t really have a lot of context behind And what’s being litigated here such that we know are they litigating properly? Theoretically, there’s an injunction against Jin Walters to use the name She Hulk. There is a countersuit mentioned by book on suing Titania for infringing upon the professional identity of she hauled, which is necessarily a legal concept. But a countersuit is not a bad strategy, because then it forces new issues into the trial, which at that point in time would have been focused solely on Titania file, the Shiho trademark. Was it provisionally granted by the Patent and Trademark Office? And it was the objection period, like over and could they have invalidated the trademark. And so this does give book a little more wiggle room in terms of pulling in certain types of evidence and certain types of arguments. But again, we just don’t know and so much of a trial is actually kind of held on paper that is really tough to see what issues are particularly in question. When we look at like a TV court drama.

Greg Lambert 36:21

Yeah, there was just it was a mess, cuz I couldn’t tell if it was a if it was a pre trial hearing or what? Yeah, it just made no sense to me. It was fun. I liked when titanium tried to get the foot exfoliant admitted into evidence. Yeah, I

Joshua Lenon 36:39

think we’re definitely continuing the series focus on just bad client behavior and quarter. Again, Titania can punch through a wall if you’re her if you’re her counsel, are you going to tell her to sit down?

Greg Lambert 36:53

Yeah, yeah. And speaking of her counsel, that guy was terrible. What a horror was am first of all, he’s taking pictures of her as court is going on? Yeah, he kind of just throws his hands up when she starts speaking to the bench and doesn’t try to.

Joshua Lenon 37:14

Yeah, he’s not taking up her best interest in terms of presenting, right Titania as somebody who is credible and empathetic for the court. Yeah, right. Instead, they tend to use coming off as shallow ones. And the lawyer is as well, yeah,

Greg Lambert 37:31

he does stand to address the bench, so good for him. He also tells Titania, that she doesn’t need to stand while he’s he’s addressing the bench. So I mean, there’s a little bit of client management there, but but not a lot. So. And again, the judge kind of lays out, you know, here’s what I’m going to need to see. And that is that, if Jennifer wants to lay claim to the She Hulk name, she’s going to have to show that she has used this name in a public setting more than once, because a show where she wants

Joshua Lenon 38:09

the judge use a phrase pattern and practice, yes, which actually is kind of part of the standard for certain types of behavior. So a one off isn’t enough, sometimes to be dispositive in certain types of evidence, you need to show a pattern and practice of continual usage. Now, that all depends on again, on the type of issue in question. And what we don’t really know is, does this actually a legitimate legal argument? Because we don’t know what the basis is. So here’s, here’s my best guess. All right. My best guess is that we can compare Jen’s name to memes, rather than identity. We look at it as memes, okay, because Jen didn’t come up with the name. But it’s now associated with her and there have been trademarks, and contested trademarks around memes like Grumpy Cat, right, the Success Kid, which is like a little baby going like this. Yeah. And even the singer Lizzo trying to trademark a phrase 100% Bitch, which is a line from one of her songs, but it’s something that she actually derived from a meme that had been circulating on Twitter. So I think the stronger legal lens to look at this is actually needs because Jen didn’t come up with the name. It’s something that is now associated with her from the outside looking at. And in those cases, trademarks are granted like for Grumpy Cat for example, because the person filed for the trademark quickly, like the meme was still popular and be began defending against usage of that meme like identity. So all these other people were putting Grumpy Cat on their products, and the owner of the cat upon whom the meme was derived, was like sending out cease and desist letters and trying to get those types of items pulled. And the court found that activity as dispositive of a proper trademark application. And what we’re not seeing in this case, is that yes, Jen, people are associating the name she hoped with Jen, but that she hasn’t gone out and kind of claimed that name and defended it, which is what the grumpy cat trademark ruling focused on interest. So that’s why the judge is saying, it’s not enough that you tell me, you want to keep the name, you have to show me that you’re keeping the name.

Greg Lambert 41:01

Yep. So Jen, through a chance meeting at the law firm with one of her bad dates, comes up with the strategy of that she has actually presented herself in public and online and elsewhere as she Hulk multiple times through her very awful dating profile on matcher. And has decided to truly embarrass herself in order to get the win. By parading her bad dates in front of the court to explain how she used the name She Hulk went on dates, as she hoped, presented herself as she Hulk and not as Jennifer Walters, it was painful to watch, which I think was the reason for it. But the four or five bad dates show up for court testify. And the the judge rules in Jennifer Walters favor that she may take ownership of the name She Hulk.

Joshua Lenon 42:07

Yeah, and there are a couple of legal issues here. One, the fact that she was even able to bring witnesses into the hearing is something that several people have commented on social media that just isn’t supported, depending upon the arguments and procedures that you’re taking here. Right. Now, if we look at the motion to dismiss from titanius lawyer, what they’re arguing is that we don’t have really any questions of fact here. And so we should just rule based on the legal questions, what we could be seen. And again, I’m really qualifying here because a lot of unknowns, and some lawyers gonna call me on it. But what we could be seen is that book is actually arguing that there is a question of fact, and we have evidence that can be submitted in support. Does a question of fact, still need to be decided in this case? And we should have a larger trial to answer that. Most of the time, though, it’s written submissions. So you don’t have to have the bad dates on stand. You can just have four guys on a piece of paper that said, Yeah, I went on a date where she hauled in front of a notary, and that would be enough. But again, I think creative license has put the dates on the stand. And that’s what we saw here, I think. Yeah, I do, however, feel the ruling is an error. Yeah. Because again, if we go back to what existing case law we have in this reality, about memes and trademarks around memes, it’s not personal usage, but commercial usage, that is actually determinative and some of those and some of those precedents, and so the fact that she was calling herself She Hulk on a dating site, as opposed to her professional website, with jlk and age, I think means that she should have lost this Yeah. Titania should have retain she hope and love better solution would have been having to license her own name that that’s something the outcome.

Greg Lambert 44:18

Yep. I agree. 100%. On that, after the trial courts have the judge rules that Titania has to do away with everything that she has to pull everything from the market. It’s a pretty brutal victory on Jen’s part and Titania as much as you may not like her, again, probably not a very fair ruling for Titania pretty expansive. Yeah. The follow up scene at the they’re back at the legal ease bar with Mallory and Jen. There was one comment that Jen made which I wanted to bring up and that was, she makes the comment that this is why Holloway pays Meet the medium bucks. So interesting that at a large, essentially white shoe law firm, which are notorious for having large salaries for for their attorneys, Jen who has brought in Meghan the stallion as a as a client is not making what you think is very large amounts of money compared to her counterparts there. So I found that pretty interesting to hear that, because again, for most profits per partner, which is kind of a, you know, it’s not what they make, but it’s kind of a baseline measurement and the legal industry, I would think that a firm like GLK and H that their partners would be making, you know, high six, low seven figures.

Joshua Lenon 45:52

Yeah, I actually absolutely agree with you. I think it’s further evidence that we see that GLK and H is not really hiring Jen for her legal acumen. But it’s really just trying to attach a recognizable brand to their team, and are turning to the rest of their lawyers to handle the quote unquote, real lawyering behind that. Yeah, we’ll have to see if that changes.

Greg Lambert 46:20

And and again, which doesn’t explain why didn’t they go out and protect that brand prior to this lawsuit? So yeah, lots of legal questions still going on here. I did want to ask a legal question about the tailor to the superhuman group that’s out there that, is there any legal implications for creating super powered suits, because he talked about things that are, are waterproof things that are fireproof things that have built in weaponry? You know, I think that last

Joshua Lenon 46:54

one, yeah, is where you get into some interesting questions, right. So if you’re building something that you know will be used in the commission of a crime, for example, then there may be some vicarious liability that can be applied, and they should worry about I built in, I don’t know, Taser into these gloves for a client, right? And then surprise, the person went out and tase someone, well, maybe you shouldn’t have put in, you know, an actual working Taser into gloves. That’s sold to an individual with a known history of violence. So it’s not necessarily illegal, but it can be seen as reckless. And it can be seen as the basis for including that Taylor and a lawsuit because of the clothes that they’ve made. And how somebody else use them. Yeah. So in law school, the question is, can somebody sue for that? And the answer is always yes. The question is, can they win? Right? And I do think you can make the argument that there are going to be some people who get beat up, and they’re going to sue this Taylor and they may win.

Greg Lambert 48:08

Yeah, yeah, I asked that because as Jen is walking, and you see someone walking out the word on the street, is that that is leap frog, who will show up apparently later in episode so he’s not just making them for superheroes. He’s also making them for villains. And for vigilantes because we also see as another lawyer costume out there as well as

Joshua Lenon 48:39

Longley imply another superpower lawyer. Yeah, it looks like Daredevil helmet, right?

Greg Lambert 48:47

Yeah. The yellow suit. So everyone’s excited about the about the original yellow suit that Daredevil once more.

Joshua Lenon 48:55

Yeah. So at this point, what we may be seeing is conspiracy charters. And now we are moving into some criminal liability and civil liability. If he is actively aiding and abetting people in the commission of a crime, whether they’re a vigilante or a bank robbing guy dressed like a frog. Absolutely, he could be considered criminally liable for aiding and abetting depending upon the type of actions taken by the person he makes the costume for. And given the cartoonish nature of some of the villains in comic books where they have you know, a special outfit and that’s what turns them into the frog that can rob banks. That absolutely could be the case that why did you give this guy a second Frog Suit if you know he’s gonna go and rob banks?

Greg Lambert 49:51

Yeah, yeah, lots of issues there. So we do not have a mid credit scene. However, there is One shot that I wanted to kind of bring up that was in the courtroom drawings. And that was, there’s a shot with pug and his shoe closet. And there are a ton of superhero and supervillain tennis shoes that are brands that are not what we think of in the Marvel Cinematic Universe. Yeah. And so we kind of get some real life licensing issues here. So you see things like Deadpool you see x men you see fantastic for a number of things that the MCU has recently licensed from other corporations. So

Joshua Lenon 50:46

the in its its ongoing move to own every bit universal trademark ever has acquired the rights to some of those storylines and the characters within them. And we do know from some more recent announcements about where the MCU is going, like in terms of movie titles and things that they’ve talked about. Yeah. And we know the Fantastic Four is one of them, for example. And so this is the first release of new Fantastic Four IP in the Marvel Cinematic Universe, even before the movie or the cast list, or the story name has come out. Some artist drew a Fantastic Four and an X Men sneaker. And that was it. Now I can

Greg Lambert 51:34

Yep, yeah. Well, technically, I think the Doctor Strange multiverse of madness did have have that in there. But again, if this was something that was made, three years ago, they couldn’t have used those without going out seeking that license. So IP law is a real thing. Even the Walt Disney Corporation has to follow the rules there. But you’re right. I think they’re they’re trying to own not just the the Marvel Cinematic Universe, but the universe. So we’ll see.

Joshua Lenon 52:05

My question for you though, is when they inevitably take these drawings and make them into real sneakers. Are you going to wait in line for it?

Greg Lambert 52:13

I am not a sneaker head. I do know some people I do have a pair of vans, Avengers shoes. But they were they were a Christmas present from one of my kids a couple of years ago. So they have like their their green and blue and yellow and red with with each of the you know Iron Man, Hulk, Captain America. Thor, they they have silver wings. So really cool. So I, I wouldn’t say I, you know, I would definitely wear them. If one of my kids, you know, were to end up buying one of them. And so kids, if you’re listening, I would I would go ahead and take that as a as a Christmas present.

Joshua Lenon 52:56

Nice.

Greg Lambert 52:57

All right. Well, I think that wraps up this episode. I’m looking forward to seeing whether or not is Daredevil going to be in the next episode or not? I’ve actually held off even though it’s out I’ve really resisted not watching. So I’m really looking forward to watching the next episode. So Joshua, any any parting thoughts before we sign off?

Joshua Lenon 53:23

Oh, just stay super listeners.

Greg Lambert 53:25

All right. Thanks, Joshua. I will I will see you next week.