Todd McFarlane Sues Ex-Employee For Spawn Trademark, Copyright Infringement

October 4, 2012, by Mandour & Associates, APC

Los Angeles – Todd McFarlane, creator of the vastly popular 1990s comic book superhero Spawn, accused an ex-employee of trademark and copyright infringement, among other claims, in a lawsuit filed last week over the ex-employee’s publication of an autobiography claiming to have served as the inspiration for Spawn.

Al Simmons and his wife Melanie both formerly worked at Todd McFarlane Productions Inc., according to McFarlane’s complaint in Arizona federal court. Many years ago, Al Simmons gave McFarlane his permission to use his name as the Spawn character’s given, non-superhero name, but Simmons has now published a book about his connection to Spawn that infringes McFarlane’s intellectual property rights, McFarlane says.

The Simmonses breached their duties and employment agreements during their time with the company by misappropriating trade secrets and confidential information from TMP, and have violated McFarlane’s intellectual property rights, the complaint says.

In early 2011 Al Simmons approached TMP and McFarlane to discuss his desire to write or co-author an autobiography. McFarlane questioned Simmons’ decision, but gave his blessing to the project so long as Simmons remained accurate regarding McFarlane and the company, honored his company obligations and did not spend work time on the book.

Later that year, Al Simmons and McFarlane participated in a background discussion with a ghostwriter Simmons had hired. McFarlane again cautioned Simmons to be sure the book did not infringe on any intellectual property rights and be careful of its accuracy. He further told Simmons that he questioned the purpose of the book and did not endorse it.

Al Simmons published the book “The Art Of Being Spawn” this year. The book “is riddled with knowing untruths, inaccuracies, misappropriations of the McFarlane companies’ trade secrets, disclosures of the McFarlane companies’ and McFarlane’s confidential information, and infringements on the McFarlane Companies’ and McFarlane’s intellectual property rights,” the complaint says.

One of the most egregious examples of false and misleading information in the book is Al Simmons’ suggestion that his life was allegedly the inspiration for or provided any background for the Spawn character, according to McFarlane.

“Al Simmons, who was flattered and eagerly gave his consent to McFarlane in 1992 for his name to be a part of ‘Spawn,’ was not the inspiration for ‘Spawn’s central character and no one has ever confused that character with defendant Al Simmons,” the complaint says.

“Curiously, defendant Al Simmons has, over the years, as ‘Spawn’ enjoyed popularity, remarked on how his association with plaintiffs has provided him with some name recognition or notoriety, where he had none before ‘Spawn’,” it says.

Simmons has effectively traded on McFarlane’s fame, brand and copyright and trademark protected creation McFarlane says. He deliberately included falsehoods in the book in a further attempt to wrongly capitalize and infringe upon the McFarlane Companies’ intellectual property interests and McFarlane’s name, likeness and identity, according to the complaint.

TMP is the owner of the federally registered trademark in the Spawn name, and holds various other related trademarks arising out of the Spawn comic book franchise. Al Simmons is using the trademark to falsely indicate an association with McFarlane, and is doing so in a way that is likely to cause confusion amongst consumers, the complaint says.

In his infringing use of the trademark, Al Simmons is trying to increase sales of his book by attracting fans of Spawn and McFarlane, his desired audience, McFarlane alleges.

Al Simmons has also knowingly and intentionally reproduced, displayed and used McFarlane’s copyrighted work relating to the Spawn series without permission, with total disregard for McFarlane’s rights, the complaint says.

In addition to the trademark and copyright infringement claims, McFarlane is asserting claims for actual and threatened misappropriation of trade secrets, unfair competition, breach of fiduciary duty and duty of loyalty, false endorsement, false advertising and libel.

McFarlane is seeking an injunction barring the Simmonses from misappropriating or using any trade secrets or confidential information, and an order that they return any such information in their position to the company. He also wants the court to compel them to produce their computers for inspection for any such information, and has asked for statutory, compensatory, punitive and exemplary damages.