Gag Order in Comic-Con Spat Violates Free Speech, Ninth Circuit Rules

(CN) – A court order prohibiting the organizers of a Salt Lake City comic convention from discussing trademark litigation over the name “comic con” on social media violated their First Amendment rights, a Ninth Circuit panel held.

The case could decide whether “comic con” is a brand name or a generic term for comic fan conventions.

The organizers of San Diego’s famous Comic-Con, held annually since 1970, sued Dan Farr Productions over the use of the trademarked “Comic-Con,” claiming it confused people into thinking the Salt Lake City convention was associated with the original.

As many different cities host similar events with similar titles, organizers of such conventions are watching the lawsuit by the San Diego convention closely, as it may determine their ability to use the term.

The Utah convention is spelled “Comic Con,” while the San Diego event is hyphenated. The Utah organizers claim the San Diego convention has not enforced its trademark since more than 100 events around the country use some variation of the name.

San Diego Comic-Con takes particular issue with Farr’s advertising campaign, which used the phrase “Comic-Con is coming to Utah” – proof the Utah organizers “made the decision to capitalize on the goodwill of [the Comic-Con] brand,” the San Diego organizers say.

U.S. District Judge Anthony Battaglia refused to dismiss the action last month, setting the stage for a trial in November.

In refusing to grant Farr summary judgment, the judge cited a consumer survey showing 80 percent of consumers believe “Comic-Con” is a brand name, not a generic one.

As trial looms, the convention organizers have battled in court over the Salt Lake City organizers’ social media and website posts about the case. Battaglia ordered Dan Farr to take down all internet content that refers to the litigation, following a three-hour hearing last month.

The judge called the information on the Salt Lake Comic Con’s website “a disturbing display…that appears, frankly, to violate the court’s order.” Availability of that information, coupled with media attention the case has been receiving, risks tainting the jury pool, Battaglia said.

He stopped short of finding Farr in contempt as the San Diego organizers requested, however, but entered sanctions against them prohibiting “all references to the pending litigation, except the disclaimer ordered by the court, on [their] websites and social media.”

Dan Farr filed a writ of mandate with the Ninth Circuit, which on Thursday found in the Utah organizers’ favor.

Dan Farr argued the sanctions involved unconstitutional prior restraints on speech, and the three-judge panel agreed in a per curiam order decided without argument.

“Petitioners’ speech does not constitute a serious and imminent threat to San Diego Comic-Con’s right to a fair trial,” the panel wrote in granting the petition.

Battaglia’s orders “silence one side of a vigorously litigated, run-of-the-mill civil trademark proceeding,” the panel continued.

There is not enough evidence linking the number of people who follow the Salt Lake City convention and its organizers to the conclusion that the speech would prevent seating an impartial jury, the panel found.

“San Diego Comic-Con has presented no evidence as to how many, if any, of the approximately 35,200 Twitter followers are registered voters in San Diego and Imperial counties and how many, if any, of the 120,000 attendees of the 2014 Salt Lake Comic Con in Utah are even possibly members of the current San Diego-area jury pool,” the panel wrote.

“Even were we to hypothetically and implausibly assume that each Twitter follower and 2014 Salt Lake Comic Con attendee is a registered voter in San Diego and Imperial Counties (and that there is no overlap), that group would constitute only approximately 8.9 percent of the relevant jury pool, which is insufficient to demonstrate that 12 unbiased jurors could not be found absent the restraining orders.”

Circuit Judges Kim McLane Wardlaw, Ronald Gould and Paul Watford sat on the panel.

Attorney Callie Bjurstrom, representing San Diego Comic-Con, declined to comment on the decision.

Michael Katz of Maschoff Brennan, representing the Salt Lake City organizers, declined to comment.

The trial is scheduled for Nov. 28.

 

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