RKMBs Forums .::Robegories::. Comic Books Jim Shooter? Valiant? Again?

Just a month removed from the [Aug 29th] release of Valiant Entertainment. Inc.'s Harbinger: The Beginning hardcover, last week's Comic-Con International: San Diego served as the scene of what may wind up being the latest salvo in a brewing battle over the Valiant legacy that is already being fought in the legal arena, and most certainly the court of public opinion.

Valiant readers in attendance of last Friday’s Third Annual Valiant Comics Open Conference panel in San Diego - a fan sponsored event - received news from Valiant Entertainment's Director of Marketing Chip Carter that the publisher plans another upcoming project, for which - according to Carter - Valiant Entertainment is currently in unspecified negotiations to publish.

However, there was a brand new product at Comic-Con of possible interest to Valiant fans, a surprise “exclusive” ashcan that most fans never even knew about featuring concept sketches of new, re-imagined versions of Valiant characters, entitled - though partially misspelled - the "Valiant Sneak Peak" [sic]. This ashcan, however, was not published by Valiant Entertainment.

It was released by Valiant Intellectual Properties, LLC.

Confused?

Let’s try to walk through this…

THE BACKSTORY

In 2004 former Valiant copyright and trademark owners Acclaim Entertainment, Inc./Voyager Communications, Inc. filed for Chapter 7 bankruptcy and the Valiant characters - which had ceased publication in any form in 2002 - were put up for auction along with all of the companies remaining assets, as is standard in Chapter 7 proceedings. Several interested bidders came forth to attempt to purchase the characters made famous in early nineties titles like Harbinger, Eternal Warrior, and Bloodshot.

However, in a separate action prior the auction period, as Newsarama reported in April of 2005, Valiant Intellectual Properties, LLC., a Delaware based company, applied to register the trademarks to a number of Valiant characters, including Secret Weapons, Outcast, Rai and the Future Force, Deathmate, Quantum and Woody, Harbinger, PunX, Dr. Mirage, Eternal Warrior, Ninja, Bloodshot and The Visitor.

Eventually, the Valiant properties were auctioned “AS IS” by the bankruptcy trustee handling Acclaim’s assets, an action no party disputes. But it’s from this point that the positions of the two separate parties claiming rights to Acclaim intellectual property begin to diverge, beginning with - but not limited to - the definition of “AS IS” in the Acclaim case.

VIP (Valiant Intellectual Properties) was not a bidder in the auction, which saw two parties - John Taddeo one, and Ashok Kothari, Jason Kothari, and Chandra Shamdasani the other - both offering bids for $925,000. While Taddeo’s bid was favored by the Court at first, the sale was finally made to the latter group of bidders.

So to quickly recap, the winning bidders, who now go by the name Valiant Entertainment, and are publishing this month's Harbinger hardcover (which it is important to note here, was solicited to include a new Harbinger story by Jim Shooter, and the debut of a “new Valiant character”) are not the same entity as VIP, LLC.

Which brings us back to the definition of “AS IS” in terms of the acquired assets.

Asked what Valiant Entertainment currently claims to hold the rights to (precisely) in regards to the Valiant characters, a company spokesperson told Newsarama, "Valiant Entertainment owns all trademarks and copyrights owned by Acclaim Comics, Inc. and Voyager Communications, Inc. This means all brands - the names of the characters, the titles of books, and the Valiant and Star Logo imprints - and all content - the stories, art, likenesses of characters, animations, game play and the like. They were acquired from Acclaim Entertainment's estate."

Later, asked if their position regarding their rights include the ability to publish brand new stories based on established Valiant characters, as well as the rights to re-imagine and revamp existing characters/trademarks, the spokesperson reiterated that, “Valiant Entertainment owns the right to all Valiant and Acclaim titles, character names, character likenesses, stories, etc.,” adding, “including any derivative works (i.e. re-imaginings, revamps, sequels, etc.), and can use them in any and all media and for any purpose, including new publications.”

In support of this position, in all promotional materials for the Harbinger hardcover, Valiant Entertainment's boilerplate reads:

"VALIANT™ characters include X-O MANOWAR®, BLOODSHOT®, HARBINGER™, ETERNAL WARRIOR™, DOCTOR MIRAGE™, NINJAK™, SHADOWMAN®, RAI™, and QUANTUM & WOODY™, among many others."

Conversely, Newsarama asked Valiant Intellectual Properties Inc.’s attorney Michael Lovitz what his clients understand Valiant Entertainment claims to hold the rights to, and does VIP dispute any or all of VE’s claims and/or their right to publish the Harbinger hardcover, which again is scheduled to feature that new Harbinger story and the debut of the new Valiant character.

“Valiant Intellectual Properties, LLC has filed the registration of numerous trademarks and intends to use those trademarks on its own characters and stories,” responded Lovitz. “Valiant Intellectual Properties does not know what rights VE may have bought as part of the Acclaim ‘AS IS’ sale of assets, and it’s not our place to say. Whatever assets they have are those ‘AS IS’ assets it bought, with full knowledge that Valiant Intellectual Properties had filed its trademark applications.”

However, in a separate statement to Newsarama on the matter [which will be published its entirely later in this story], Lovitz is more specific as to VIP’s position as to what VE purchased at auction.

“The Kothari Group proceeded to purchase the Acclaim assets “AS IS”, fully aware that those assets did NOT include the trademarks and that those trademarks were now the subject of applications owned by a third party,” reads Lovitz’s statement in part.

So to attempt to summarize to this point, VE’s position is the assets they purchased include trademarks, despite some lapsing before the Acclaim assets auction, and VIP’s position is the assets purchased did not include some of the trademarks.

With us so far?

Of course, the flipside to the respective positions on what Valiant Entertainment owns and/or possesses the rights to, are the respective positions on that Valiant Intellectual Property owns and/or possesses the rights to.

Asked what VIP currently claims to hold the rights to (precisely) in regards to the Valiant characters, Lovitz replied, “Valiant Intellectual Properties, LLC has developed a group of characters that it will be publishing under the trademarks for which it has filed.”

In support of that, the Comic-Con ashcan (which we will describe in greater detail later in this story) includes this boilerplate.

"All characters featured in this book, the distinctive names, images, elements, logos, symbols, and likenesses contained therein and associated therewith that have been reproduced (collectively "intellectual property") are tm and (c) 2007 Valiant Intellectual Properties, LLC. unless otherwise noted.”

Asked what VE understands VIP claims to hold the rights to in regards to Valiant intellectual property, and do they support or dispute these claims, the Valiant Entertainment spokesperson replied, “There is a dispute between the parties that is currently being litigated. Upon advice of counsel, we cannot comment on the dispute, but we are confident the facts will confirm our position.”

That said, one of the first actions by the newly formed Valiant Entertainment was to begin filing what are termed “oppositions” to VIP’s trademark applications with the U.S.P.T.O. (United States Patent and Trademark Office). Each trademark application and opposition is handled as a separate case, and several are currently being considered by examining officers, processes that could take up to several years to be completed and ruled upon.

The argument between the two companies seemingly boils down to rights to the trademarks of several properties, all of which according to information on the USPTO.gov website, lapsed at different times. International trademark practice presumes that marks are abandoned if they are not used for a period of time. In the United States, this period is three years.

Important dates to keep in mind with these: Acclaim filed for Chapter 7 bankruptcy protection on September 1st, 2004, and the auction of the Valiant assets was held in April of 2005.

The properties are:
(note - "trademark status" reflects the status as of information on the USPTO site today)


Quantum & Woody
Trademark went dead: 9/17/05
VIP Application for trademark filed: 3/31/05
VE Application for trademark filed: 12/21/06
Trademark status: Opposition to VIP claim pending, further VE action suspended

Ninjak
Trademark went dead: 8/27/05
VIP Application for trademark filed: 3/31/05
VE Application for trademark filed: 12/21/06
Trademark status: Opposition to VIP claim pending, VE mailed notice requesting additional information

Dr. Mirage
Trademark went dead: 1/22/05 "Doctor"
VIP Application for trademark filed: 3/31/05 (for "Dr.")
VE Application for trademark filed: 12/22/06
Trademark status: VIP given allowance for use with "Dr.", further VE action suspended on "Doctor"

Harbinger
Trademark went dead: 12/18/04
VIP Application for trademark filed: 3/31/05
VE Application for trademark filed: 12/21/06
Trademark status: Opposition to VIP claim pending, VE mailed notice requesting additional information

Eternal Warrior
Trademark went dead: 11/13/04
VIP Application for trademark filed: 3/31/05
VE Application for trademark filed: 12/21/06
Trademark status: Opposition to VIP claim pending, VE mailed notice requesting additional information

Rai and the Future Force
Trademark went dead: 8/7/04
VIP Application for trademark filed: 3/31/05
VE Application for trademark filed: 12/21/06
Trademark status: Opposition to VIP claim pending, further VE action suspended

"Valiant" stylized mark
Trademark went dead: 8/9/97
VIP Application for trademark filed: 3/31/05
VE Application for trademark filed: 12/22/06
Trademark status: VIP appealing USPTO claim mark is too similar to "Prince Valiant," further VE action suspended

Bloodshot
Trademark went dead: renewal listed in USPTO on 11/25/03
VIP Application for trademark filed: 3/31/05
A cancellation proceeding has been filed at the Trademark Trial and Appeal Board and is now pending.
In regards to any trademarks that expired after the September 2004 bankruptcy filing, the situation is hardly cut and dry and while U.S. Court decisions have been inconclusive, there apparently is some legal precedent in which courts have claimed that special circumstances (a company’s bankruptcy or its inability to sell its business), justify the 'excused nonuse’ of a mark, and serve as evidence of ‘residual goodwill’ to rebut the presumption of abandonment. Such cases could potentially be cited in any company’s attempt to recover an abandoned mark.

More details on such cases, and trademark law as it pertains to the resumption of abandoned marks in general, can be read in US Courts in Quandry Over “Abandoned” Trademarks: Is an Ex-Trademark Protected if it Remains Known and Loved by Consumers?

In addition to responding to Newsarama’s questions, both Valiant Entertainment’s Senior Vice President and Publisher Walter Black, and Lovitz, also issued separate statements to Newsarama, respectively.

Reads Black’s statement:


"Valiant Entertainment owns all intellectual property rights, which includes all copyrights and trademarks, to the Valiant and Acclaim Comics library of characters previously owned by Acclaim Comics, Inc. and Voyager Communications, Inc. Valiant fans and creators can be assured that Valiant Entertainment will take all actions necessary to fully protect the ownership of its intellectual property. The so called "Valiant Sneak Peak" has not been authorized by Valiant Entertainment. The situation is unfortunate as it ultimately hurts our loyal fans the most."

Lovitz’s statement reads:


”My client Valiant Intellectual Properties appreciates the opportunity to respond – Newsarama is well regarded both as a news site and as a fan site, and has a sterling reputation for its news articles being fair and unbiased, recognizing that every story has two sides.

“In 2005, Valiant Intellectual Properties applied for a number of trademarks that had been cancelled or abandoned (or in one case, a registration that was not enforceable due to fraudulent claims of continued use within government filings) by Acclaim. These applications were filed after I had conducted some basic research of the public records in the U.S. Trademark Office, which revealed that these marks were available. Given that trademark information is public and readily available to everyone, this was something anyone could have (and should have) researched.

“Let me be clear – it was the inactions of Acclaim that led to the abandonment of many of their trademarks, in most cases years before the Acclaim assets were auctioned.

“Subsequently, the Kothari Group, aware of the trademarks not being available, was one of two bidders offering over $900,000 on the ‘AS IS’ Acclaim assets. I recall Newsarama was covering the details of the auction and eventual sale of the Acclaim assets in great detail.

“After the other bidder withdrew from the auction, the Kothari Group proceeded with the purchase of the ‘AS IS’ Acclaim assets, but only after securing a reduction of their bid to $700,000 because of the fact that Acclaim did not have good title to the trademarks.

“Just to be clear:


”(i) The Kothari Group proceeded to purchase the Acclaim assets “AS IS”, fully aware that those assets did NOT include the trademarks and that those trademarks were now the subject of applications owned by a third party; and

“(ii) The Kothari Group relied on those facts to secure a reduction of over $200,000 off the purchase price.
"I’m honestly surprised that after having received such a substantial discount in the purchase price that the Kothari Group could still feel entitled to trademarks that were not included in the Acclaim “AS IS” asset sale, and that they would be misrepresenting their actual rights to the public.

“I can state for the record, and have always stated when inquired of me, that Valiant Intellectual Properties has been and remains open to meeting with the Kothari Group to discuss this matter. At one point I was approached by the Kothari Group and both sides were agreeable to meeting in order to discuss the issue. My only request was that both sides sign a mutual non-disclosure agreement. Understand that this agreement was a mutual non-disclosure - Valiant Intellectual Properties was interested in protecting its ideas, just as we assumed the Kothari Group would want to protect any ideas they were forming at the time. Although the Kothari Group initially agreed to the non-disclosure agreement, they ultimately declined to meet.

“Back in 2005, following Newsarama’s reporting, I received questions from several people identifying themselves as fans of the old Voyager ‘Valiant’ comic line. I was more than happy to answer questions that did not have to compromise my duties to my client. I took the questions as being from fans at face value. Unfortunately, whether intentionally or not, there followed numerous posts on fan sites which (if memory serves) either misquoted me or misrepresented my answers. In addition, there were posts made to Valiant fan forums which proposed violence against my clients and physical assaults directed to me during my presentations at the San Diego Comic-Con International – posts such as these:


’First, kick Lovitz as hard as you can in the nuts. Then ask: ‘Seriously, does that hurt?’ ‘

‘Shall I get my torches and pitchforks ready?’

‘Grab Lovitz by the nuts. Toss him out the window.’

‘I want to know the facts. When available if it is as bad as we think, I will drive us all over to stink bomb their houses.’

‘Their lawyers name is Michael Lovitz and I believe somebody has his address in Philadelphia. There's a VALIANT Gold on its way to you if you do punch him in the guts.’
”In my personal opinion, this was done by a small but vocal group of fans. For example, several fans stated on Valiant fan forums that a gentleman by the name of ‘Dino’ was posting under several different user names. It was later confirmed that Dino was in fact associated with the Kothari Group. Based on that, it appears to me that these threats, misstatements and misrepresentations were all a deliberate attempt to manipulate the Valiant fan boards and mislead the fans as to the actual rights they had purchased.

“I think you can understand my professional and personal frustration in such circumstances, and why I have advised my clients to maintain their silence until now. Despite this, however, I will state for the record that my clients are still willing to meet with the Kathari Group under a mutual NDA.

"Valiant Intellectual Properties appreciates this opportunity to clarify its position and to shed light on the misrepresentations that the Kothari Group has been making about what they acquired at the Acclaim auction. Thanks to you and the Newsarama fans for your time.”
Lovitz, a familiar figure in the company book community, has served as legal representation for a number of publishers over the years. He is also the author of the The Trademark and Copyright Book comic book (published by Sirius) and host/moderator of the Comic Book Law School® 101 series of panels at Comic-Con: International, which includes instructions for new publishers and creators on how to protect their intellectual property rights.

*Lovitz has also provided legal analysis for Newsarama stories in the past.

* Valiant Entertainment has been a paid advertiser on Newsarama.com, advertising the upcoming Harbinger hardcover during the month of July.

THE ASHCAN

So having spent all this time illustrating some of the background as to what was on sale at Comic-Con, what's actually in this "Valiant Sneak Peak" [sic], and where was it available?

The pamphlet was available at one retailer booth on the Comic-Con, the "ComicCentral.com" booth, and was being sold for $40.00. The ashcan - as of publication of this story - is available for sale on the retailer's website, currently for $49.99, with the sale copy, "Is this the return of the Valiant Universe?"

And the contents?

According to Newsarama contributor Ryan McLelland, who purchased a copy at Comic-Con, the blue covered booklet has a “VC” inside a black circle for a logo on the cover (above), perhaps indicating “Valiant Comics.” The bottom reads 'Valiant Sneak Peak' with a woman on the cover, apparently the design for a new Ninjak character. The back cover reads “Valiant Intellectual Properties Sneak Peak” and the copy purchased by McLlelland is labeled #38 out of 100 San Diego 2007 copies.

Inside are twelve pages with simple designs for new characters, including Harbinger, Deathmate, Bloodshot, Outcast, PunX, Rai and the Future Force, Ninjak, The Visitor, Dr. Mirage, Eternal Warrior, and Secret Weapons.

“Deathmate” was the title of now somewhat infamous 1993-94 crossover storyline between Valiant and Image Comics. According to McLelland, in this ashcan Deathmate is apparently re-imagined as a female character in a long black dress and tattoos up her arms. Rai and the Future Force appear to be Asian mob in black suits and carrying machine guns. Doctor Mirage looks like a hollowed-out man on the verge of death. The Visitor looks like a young Superman with a large "V" on his chest. Secret Weapons appears to a military property featuring a male character wearing an eye patch.

An interior page reads simply "COMING SOON!"

The ashcan features only the character designs, apparently all drawn by the same, but unaccredited artist, along with the boilerplate detailed earlier.

Asked what information he could provide in terms of what VIP’s plans are for publication of these properties,” Lovitz responded, “I can tell you that Valiant Intellectual Properties has been working on this for years and I’m certain that as the publication date approaches, they will be announcing more details. Saying any more is really not my place.”

So what’s next? Rulings by the examining officers in VIP’s trademark registration applications (opposed by VE) will certainly shed legal light onto all these issues, whenever those rulings occur. Until then it seems like both parties will proceed with their publishing plans, though Valiant Entertainment has stated for stated they will oppose any VIP publication via “all actions necessary”.

In the latest development in what has seemingly become a quagmire of intellectual property rights and legalities over the former Valiant characters took another twist this past week. The Harbinger: The Beginning hardcover, originally due to go on sale this Wednesday from Valiant Entertainment, LLC. collecting the original 1990’s Harbinger #0-7 along with an all-new "Origin of Harada" story by Harbinger creator Jim Shooter, has been cancelled in the Direct Market. Retailers who have called their Diamond Comics Distributors representatives to inquire about the availability of the hardcover have been told that the item was canceled Friday due to "legal reasons."

Tuesday retailers were informed by Valiant Entertainment that the volume (which already was sold earlier this month at Wizardworld: Chicago) will still be available for sale, directly from the publisher. Responding to Newsarama’s inquiries about the cancellation and “direct sale” offer, Valiant Entertainment issued a press release addressing the development.

“After careful review and discussion, Diamond Comics and Valiant Entertainment mutually agreed that Harbinger: The Beginning will be distributed via the ‘Valiant Retailer Direct’ program and not through Diamond Comics Distributors,” reads the release.

“The Valiant Retailer Direct program ensures that Valiant readers receive Harbinger: The Beginning within a few days of its scheduled release date, while removing the unnecessary burden on a third party distributor until a current legal dispute is resolved and giving Valiant Entertainment the opportunity to form relationships directly with valuable retail customers,” said Walter Black, Senior Vice President & Publisher of Valiant Entertainment, in the release.

According to the publisher, the “Valiant Retailer Direct” program allows retailers to purchase the new hardcover collection directly from Valiant Entertainment, as opposed to via Diamond, and at a 56% discount off the suggested retail price of $24.95.

The volume will apparently also be available through other retail means and as of Monday evening was available for order on Amazon.com

While neither Valiant Entertainment nor Diamond provided specifics about the “legal dispute” that led to the volume’s Direct Market cancellation, speculation will of course center on the ongoing conflict between Valiant Entertainment, LLC, and Valiant Intellectual Properties, LLC. Click here for the full known details of that dispute.

Look for more information on this development as it becomes available.

There had been a chance of him doing more Legion but apparently there were enough people at DC that just out & out didn't like him. I think I just got the one side of the story but it struck me as very unprofessional & petty on the part of the anti-Shooter people.

If either company was smart they would bankroll an imprint line or something with him in charge.

From what I remember hearing, the other issues weren't completed because Shooter refused to finish them until Acclaim paid him for the first three.