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USPTO requires sales data of Dark of Midnight, Wart The Wizard: Sunday Follies to avoid Comicsgate trademark cancellation

by 10.25.2022

By Robert Romano

The U.S. Patent and Trademark Office has found that “comics books were produced and advertised” under a licensing agreement of the Comicsgate trademark then registered to Antonio “Cridious” Malpica to Anthony “Dark Gift Comics” Romano in spring 2020 but is first requiring “evidence showing sales of the comic books in the U.S. bearing the mark” in order to avoid cancellation of the trademark for comic books, in an ex parte proceeding before the agency.

The Oct. 25 action by USPTO gives the holder of the Comicsgate trademark, Ethan Van Sciver — whom Malpica assigned his own registration of the Comicsgate mark to in April 2021 — 90 days to respond to the agency to show sales data prior to an Aug. 13, 2020 legal deadline on two books that bore the Comicsgate trademark under the Malpica-Romano licensing agreement: “The Dark of Midnight” and “Wart the Wizard: Sunday Follies,” both by Romano (no relation to this author).

According to the action, “While the evidence submitted shows the comics books were produced and advertised, it does not show they were actually sold to U.S. consumers. Registrant must provide evidence showing sales of the comic books in the U.S. bearing the mark. Accordingly, the requirement to provide documentary evidence of use as of the relevant date is now made FINAL.”

Now, Van Sciver has 90 days to respond: “The USPTO must receive a response within three months” including “evidence showing sales of the comic books in the U.S. bearing the mark.”

Fortunately, and in fact, as a customer of Comicsgate books, I backed both the original “Wart the Wizard,” in which every backer got a copy of “Wart the Wizard: Sunday Follies,” in Oct. 2019, and “The Dark of Midnight” in May 2020 on Lulu.com, where it remains on sale today.

“Wart the Wizard: Sunday Follies” remained on sale as a separate product on StuntmanComics.com while “Wart the Wizard” was in-demand before selling out recently.

Both proprietors, Romano and Summers, presumably have retained receipts of the sales of their books.

As a customer, I can attest that I received both after my purchases, with “Wart the Wizard” fulfilling beginning in July 2020 and “The Dark of Midnight” which delivered in June 2020, all prior to the Aug. 13, 2020 legal deadline prescribed by USPTO. The pictures in this article are of my books that I bought.

I also kept my receipts.

Here’s “The Dark of Midnight,” bought on May 18, 2020 from Lulu.com:

And here’s “Wart the Wizard,” purchased on Oct. 12, 2019 from Indiegogo.com:

Critically, both bear the Comicsgate trademark, albeit Romano’s own iteration of it owing to his own application for the trademark dating to May 2020, which has now been joined with Van Sciver’s own application for the service mark, and the Malpica mark for comic books, which has been assigned to Van Sciver. The important elements are all there: the books were sold in commerce, they bear the Comicsgate trademark, Malpica allowed it and they were delivered.

Now, it is up to Van Sciver to show to the USPTO the sales from Romano and Summers’ books definitely occurred prior to the Aug. 13, 2020 legal deadline. Here’s the thing: they definitely did.

Robert Romano is the Editor-in-Chief of Comicsgate.org.

Updated to include more hyperlinks and remove redundant quotes.

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