Kevin, I know the difference between copyright and trademark (hence
the "on different grounds").
The similarity is claiming ownership something we see as generic -
in the Fawcett case, superhero comics in general (in some sense,
anyway), and in this case, the term super hero (in general and
commercial use as far back as 1966, at least).
I'm not convinced that the Fawcett case was rightly decided[1].
Remember that at that time, the common understanding of comics gave
us Werther and the Comics Code. Ultimately, DC won the case because
there wasn't enough of a market for superhero comics for Fawcett to
keep up the fight.
[1] Then or especially now (post-Feist).
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