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No, You Can’t Just Sell Stuff With “Wakanda” In The Title

Black Panther has been a rousing financial success and a boon to the black community in America, which can mean only one thing: somebody’s going to try to make money off of it.

The movie has surpassed a billion dollars in profit. People are more than willing to spend money on that thing because they love it and want to be a part of it. Which is fine. I’ve got sports memorabilia and autographed collectibles and plenty of action figures from the franchises I love. It’s just that if you’re willing to spend money on a thing, somebody is going to want you to spend money on their thing if they can get you to do it. This is either a feature or a bug of capitalism, depending on whether you’re the guy making the money or you’re the one parting with it.

So, yeah, Wakanda. People love this fictional Afrofuturistic country and the “Wakanda Forever” battle cry. I’m betting some guy on a street corner selling inexpensive bootleg “Wakanda Forever” t-shirts could make a decent sum of money off that. That sort of thing is hard to clamp down on. But yeah…now people are starting to get bold about using the name of something which–bad news here–probably actually belongs to Marvel Comics and the Walt Disney Company.

Intellectual property law can be a minefield, but it’s usually a safe bet that a popular term has been trademarked by the company which produced the thing in the first place. Unless it’s some kind of generic term, you usually can’t make use for profit on a term that’s associated with somebody else’s concept. Can you own the word “black”? No. How about “panther”? Also no. How about “Black Panther”? Well…also probably not, since a black panther is an actual animal…but you can trademark the specific logos associated with a fictional character with that name. If you’re not clear on the ownership of a term or logo in the U.S., it’s usually a good idea to check the Patent & Trademark Office website to see if something’s been registered which you risk infringing on. For example, a quick search turns up a number of “Black Panther” trademark registrations…including a male sexual enhancement pill, which most people are probably not going to associate with T’Challa. Well, maybe.

So, something like “Black Panther” is possibly open for negotiation–it’s all going to come down to whether there’s any chance that a “Black Panther” product could be confused with Disney/Marvel’s character. You want to offer a brand of “Black Panther” brillo pads that don’t use T’Challa’s face or logo, you might be in the clear. You stick T’Challa’s picture on there without a licensing agreement from the Mouse, and you’re probably getting a cease-and-desist from Disney, if not taken to court.

Disney also owns this lawyer.

So: “Wakanda”? That one’s a lot clearer than “Black Panther,” because Wakanda is a fictional location that’s only ever used in association with Marvel. If you want to start putting “Wakanda Forever” on t-shirts, there’s no mistaking what you’re talking about. And the Mouse isn’t going to like that.

For better or worse, people are starting to get a little bold on this stuff. Somebody in Texas wants to hold a “Wakanda Wine Fest” and trademark that name. And somebody else has recently announced a “WakandaCon” in Chicago for this summer as a “fan-driven, one-day celebration of Afro-Futurism.” This all sounds well and good in terms of diversification of pop-culture cons. It’s just that they’re more than likely going to get in trouble with the Mouse for doing this.

You can argue that Marvel doesn’t have a live trademark yet. A cursory Google check suggests that Marvel’s trademark on “Wakanda” is still pending and therefore it’s up for grabs, right? Probably not. Registering with the U.S. Patent & Trademark Office just gets you the presumptive protections of federal trademark law. If an IP holder has been exclusively using a concept for a long time, they can still have the protections of an unregistered trademark under U.S. common law. It’s a little harder to win such a lawsuit, and you don’t get all the protections of the Lanham Act, but you’re probably going to win if you can show that a term like “Wakanda” has only been used by the claimant.

Is this mean? Well, maybe. “Mean” isn’t really a legal concept, though. You can argue from a P.R. standpoint that “Wakanda” means something to the public and they should be able to use it at large. That’s great and all, but it’s not going to matter much unless you can prove a weird, rare exception, like the word “Wakanda” suddenly becoming generic. That’s extremely unlikely given that we don’t think of the word in any association except with the movie. So Disney probably wants those Wakanda dollars to go to themselves, not anybody else.

Disney also owns this image now.

It’s also worth asking qui bono in these situations–“who profits”? While it’d be great if “Wakanda” became a word open to the public for commercial purposes, right now, this isn’t about social justice. Right now, it’s about people wanting to make money off of Disney/Marvel’s IP–in other words, this is a smaller capitalist fighting with a much bigger one. You might identify with the smaller guy, but right now, it’s about the smaller guy wanting to get the money that you planned to give to the bigger Mouse.

Bottom line: hey, there’s nothing wrong with an Afro-futurism con or a, uh, Black Panther-themed wine convention. That’s cool: there’s a niche in the market and somebody wants to fill it. You just can’t call it “WakandaCon.” “PantherCon,” maybe. “BlackCon,” possibly. “WakandaCon,” no. This will not end well for the people trying to do this.



About Adam Frey (372 Articles)
Adam Frey is still trying to figure out what he wants to be when he grows up. In the meantime, he's an attorney and moonlights as an Emergency Medical Technician in Maryland. A comic reader for over 30 years, he's gradually introducing his daughter to the hobby, much to the chagrin of his wife and their bank account.

1 Comment on No, You Can’t Just Sell Stuff With “Wakanda” In The Title

  1. Nicely written post! 🙂


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