SLCC Rankles Judge With Social Media Posts As A Jury Prepares To Rule

from the oversharing dept

We've been following the trademark dispute between the Salt Lake Comic Con and the San Diego Comic-Con for some time now, including all of its strange ups and downs. Despite this whole dispute starting something like three years ago, the trial itself has kept a brisk pace, with SLCC already resting its defense and jury deliberations beginning this week as well. While we'll have to wait for the jury's decision, the trial has gone pretty much as we expected. SDCC rolled out its trademark registration that it appears to have forgotten it ever had until recently from an enforcement perspective, along with some commissioned surveys suggesting that the public views the word "comic-con" as a brand and not a generic term. SLCC has pointed out that there are a ton of other comic cons out there, few of which have any licensing agreement with SDCC, and SLCC had expert witnesses poke some glaring holes in the SDCC's survey.

Andrew Baker, associate professor of marketing at San Diego State University, reviewed the survey for Salt Lake Comic Con and testified Wednesday that the results are flawed. Because of risks he saw of "good participant bias," and because the online survey didn't include a way to weed out unreliable responses from people who may have attempted to fill out the survey for money, Baker criticized the results as inconclusive.

"This study cannot be relied upon to tell us the percentage of people who think comic con is a brand," Baker testified.

Bryan Brandenburg, one of the partners behind SLCC, took the stand to recount the process by which they came up with the name Salt Lake Comic Con. As you'd expect, he recounted searching around for other similar conventions, noting that nearly all of them were using the "comic con" phrase, or some variant of it, and concluding that this is just what those types of shows are called. It's an understandable position, particularly given the descriptive nature of the phrase. A "comic con" is a "comic convention." Simple. One would hope the jury would understand that simple fact.

But there was some minor drama in the courtroom surrounding SLCC's desire to speak out about the case on its social media platforms, specifically to do with Brandenburg's testimony and the defense he would offer.

The post announced that Brandenburg would take the witness stand to show that "comic con is owned by the people, by all the fans that experience the joy and celebration of comic con in cities all over the world."

Battaglia prohibited such arguments in the trial based on objections raised beforehand by San Diego. He warned that if Brandenburg intended to make any such statements during his testimony, "tell him to bring his toothbrush with him."

Notably, Brandenburg did not raise that defense on the stand, so His Honor was not forced to put him in jail. But this wasn't the only remark Judge Battaglia made on the subject. He expanded upon it in a way that shows him bristling with the striking down of his earlier gag order on SLCC from speaking at all about the case.

"The circuit seems to believe people can say whatever they want in the world and in the media, but they don't get that privilege in my courtroom," Battaglia noted Wednesday.

Well, okay then. While I've cheered on SLCC discussing the case in public for the benefit of that public, and while we were quite critical of Battaglia's gag order, the freedom to speak is not without its dangers. It's a little surprising that SLCC would be so cavalier with its public comments on social media sites that run directly contrary to the orders of a judge who had already tried to slap it with a gag order. That's just silly and a sign that, whatever happens moving forward, SLCC should probably get its PR house in order.

Regardless, the jury is in deliberations and you can be sure we'll be commenting on the results they bring back.


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  • icon
    CanadianByChoice (profile), 8 Dec 2017 @ 4:07pm

    For what it's worth...

    "...the public views the word "comic-con" as a brand and not a generic term..."
    I've known what a comic-con was as long as I can remember - but until this case started, I hadn't heard of SDCC.
    So much for it being a "Brand".

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 8 Dec 2017 @ 4:48pm

      Re: For what it's worth...

      That's likely because it's been called Comic-Con International since 1995.

      It is the biggest comic convention in the US, the one that takes place in June or July and has turned into more of a general pop culture convention (movies, TV, etc.). It's very likely that it's the convention most people in the US think of when they hear the phrase "comic con".

      None of which means its trademark is valid. "Con" is short for convention; "Comic Con" is a simple descriptive term. And comic conventions have used variations on the name as far back as the 1964 New York Comicon.

      reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 8 Dec 2017 @ 4:23pm

    Survey

    I imagine that the people who thought "comic con" was a brand neither buy comics nor attend comic conventions. If you limit the survey to people targeted by comic conventions, 100% would say it's not a brand, and laugh at the very idea.

    reply to this | link to this | view in chronology ]

  • identicon
    Another Anonymous Coward, 8 Dec 2017 @ 5:15pm

    Judge doesn't like free speech, eh?

    So, the judge is put-out that his gag order was struck down, and has made that clear. Sounds like appealable error right there.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 8 Dec 2017 @ 6:20pm

    ""The circuit seems to believe people can say whatever they want in the world and in the media, but they don't get that privilege in my courtroom," Battaglia noted Wednesday."

    So does that silly little piece of paper called the Constitution. I'm sorry that your desire to control the world has failed in such a public way. Perhaps had your order not violated one of the most basic things enshrined in the law a higher court wouldn't have needed to step in to undo your violation of the law.

    Perhaps one should question how a Judge so caviler about the 1st Amendment is still on the bench. This wasn't misunderstanding some cryptic portion of the law, this was a Judge being angry that he couldn't control speech.

    This case is bullshit. It is a generic term & a well financed bully wants to have control over the entire market.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Dec 2017 @ 7:42am

    As just an average Joe who is into this kind of culture pretty heavily but not enough to have ever been to any kind of con, until reading this article I had always assumed anything with comic con or some close variation were all directly related to each other and fell under the same organization. With San Diego being the main and all other cons being lesser cons run by the exact same people. I wouldn't call it a generic term whatsoever. The confusion was definitely there for me and I'm sure many others. I'm sure if you're one of the minority who loves and follows cons there was no confusion but for the general public absolutely.

    reply to this | link to this | view in chronology ]

    • icon
      Cdaragorn (profile), 9 Dec 2017 @ 8:25am

      Re:

      Unfortunately you've made the false assumption that you represent the general public. I can assure you that you do not come even close to that.

      I've never been to any con anywhere mainly because I don't have the money for entry, though I live very close to SLC. At no point in my life have I ever thought that the many different comic cons I've heard of were in any way associated with each other.

      That honestly seems like a really silly assumption. Why would two events in locations hundreds or sometimes thousands of miles away from each other be in any way associated with each other just because they use a similar descriptive term in their name?

      If we were talking about something like "McDonald's" or even "Burger King", something that was clearly a NAME and not a DESCRIPTION, I could understand making that connection. Even not understanding where the con part of comic con came from, it's clearly a description of WHAT the event is, not WHO is putting it on.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 9 Dec 2017 @ 10:49am

        Re: Re:

        That honestly seems like a really silly assumption. Why would two events in locations hundreds or sometimes thousands of miles away from each other be in any way associated with each other just because they use a similar descriptive term in their name?

        Because most people don't think about that stuff.

        Clearly the jury didn't; they ruled in favor of the plaintiff.

        I think it's a bad ruling, and I hope SLCC wins on appeal. But I also think you may be the one who's made a bad assumption about how the general public thinks about this stuff (when they think about it at all).

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Dec 2017 @ 11:18am

          Re: Re: Re:

          "Clearly the jury didn't; they ruled in favor of the plaintiff."

          Well, the judge was warning the defense that they'd be thrown in jail if they even attempted to argue that "comic con is owned by the people, by all the fans that experience the joy and celebration of comic con in cities all over the world." I'm not sure you can blame the jury when the judge is hobbling one side.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Dec 2017 @ 1:27pm

        Re: Re:

        I assumed that because it's not a descriptive term. If salt lake went by say "Salt Lake Comic Convention" I would see a difference and not associate. By using the shortened comic con it implies to me that these two events are connected. You may not agree but I guarantee you this is how a general person who just sees the name and then never gives it a second thought are likely to associate it as well.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Dec 2017 @ 7:14pm

          Re: Re: Re:

          You are just so right. On my way to work, one dealer has a sign "Ford Cars" and across the street was "BMW Cars." It is just natural to think that they are the same company, both ran by Mr Cars.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 10 Dec 2017 @ 7:36am

            Re: Re: Re: Re:

            Pretty ridiculous example that isn't equivalent at all. Ford and BMW are immediately recognized brand names to the vast majority of the public and the word car is instantly recognized to all as a description of the product. No there would be zero confusion there. Comic Con may be recognized as generic to you personally but in general to those who have never dug into convention information it's not at all.

            A better example would be at that Ford Cars dealership I would find a similar selection of cars as a Ford dealership a hundred miles away because it is a brand, just as I considered Comic Con to be a brand.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 10 Dec 2017 @ 7:27pm

              Re: Re: Re: Re: Re:

              So basically you're the moron in a hurry that all the trademark people with a stick up their ass have been looking for to justify their cases?

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 11 Dec 2017 @ 6:18am

              Re: Re: Re: Re: Re:

              Except that there are identifiers that make the various cons instantly recognized as brand names to the vast majority of the public, namely Salt Lake and San Diego. The city names make it specific but comic con is the generic term for the event.

              His example is valid but just to make you happy, another one would be be car shows. There is the Detroit Auto Show, Chicago Auto Show and Geneva Auto Show. They take place at different locations and run by different people but they are all the same type of thing, auto shows. No one makes the claim they have a trademark on "Auto Show", that would just be silly.

              There is no difference between auto shows and comic conventions. If you can't call it a comic convention, what do you call it? Just because you personally didn't realize it wasn't a brand name, doesn't mean the rest of the public views it the same way.

              reply to this | link to this | view in chronology ]

              • icon
                John85851 (profile), 11 Dec 2017 @ 10:16am

                Re: Re: Re: Re: Re: Re:

                To take it one step further, it would be like the Detroit Auto Show getting a trademark on "auto show" and suing the Chicago Auto Show because they think people will associate "auto show" with Detroit rather than "a show with automobiles".

                It doesn't matter if Detroit was the first to use "auto show", the phrase isn't unique enough to sue over.

                reply to this | link to this | view in chronology ]

  • icon
    Aerie (profile), 9 Dec 2017 @ 12:41pm

    This judge is a fucking idiot. While he may be able to set rules on what people can do in his courtroom, the moment they are out of the courtroom, they can say whatever the fuck they want to say.

    YOU SEE, THAT IS EXACTLY WHAT THE CONSTITUTION OF THE MOTHER FUCKING UNITED STATES SAYS.

    Don't they hate it when people actually exercise their constitutional rights. LOLS. Simply put, judges cannot make up their own rules.

    reply to this | link to this | view in chronology ]

    • identicon
      I hope you didn't go to law school......, 9 Dec 2017 @ 4:31pm

      Re:

      First, that's NOT what the Constitution says. Nowhere in any of the WORDS ON THE PAPER, does it say that you have an absolute right to say anything you want at any time with no restrictions.

      The First Amendment doesn't say that, either.

      The US Supreme Court has INTERPRETED it to MEAN certain things, but nowhere have they found that it means you can say anything you want at any time to any one. You need to do a little more learning on this topic.

      Judges routinely put gag orders on both sides of lawsuits, and they do it for a simple reason -- to try and control the circus, especially when dealing with a jury trial. Anything that can influence the jury outside of the facts of the case and evidence presented is a generally serious issue for most judges.

      Now, this judge didn't seem to suffer from that sense of decorum or need to do anything other than punish SLCC for their cavalier attitude and apparent lack of seriousness and kiss-assedness toward him that he clearly enjoyed from SDCC's counsel. His gag order was ridiculous and given that it didn't exist from the very first day of the suit, with all proceedings locked down and all documents sealed, didn't serve a serious purpose in the role of juris prudence. He seems to have been simply acting the part of one who wears their bum as a hat. Frankly, like a lot of judges in this country.

      I have a feeling the only reason SLCC lost here, is that SDCC got some very restrictive instructions put in place that locked the jury down into saying that 'comic convention' is not a descriptor of an event, but an actual thing owned by SDCC. On appeal, it seems fairly likely to me SLCC could prevail, assuming they made a good record.

      reply to this | link to this | view in chronology ]

      • icon
        MyNameHere (profile), 10 Dec 2017 @ 4:15am

        Re: Re:

        "On appeal, it seems fairly likely to me SLCC could prevail"

        Considering the judgement is only for $20,000 and basically "stop using Comic-Con for your event", I don't see much benefit in tossing another huge pile of money down the toilet for an appeal. They can just move along and not have to worry in the future.

        Other events that have been using the Comic-Con moniker to describe their events will likely have to take steps to either obtain a license, or come up with some other term to describe their events. With a judgement in hand and any appeal process dragging out, almost every other event has to face the music in the next 12 months if they are yearly events.

        reply to this | link to this | view in chronology ]

        • icon
          The Wanderer (profile), 12 Dec 2017 @ 8:19am

          Re: Re: Re:

          Considering the judgement is only for $20,000 and basically "stop using Comic-Con for your event", I don't see much benefit in tossing another huge pile of money down the toilet for an appeal.

          The benefit, aside from being able to use the generic phrase "Comic Con" to describe their event, is...

          Other events that have been using the Comic-Con moniker to describe their events will likely have to take steps to either obtain a license, or come up with some other term to describe their events.

          ...avoiding the necessity of this happening.

          Locking up a descriptive phrase to one particular entity is an undesirable thing, and is not the best outcome for either the public or the market. (I'm reminded of the case of the "Tower Defense" trademark, in which a generic term - literally, one that describes an entire genre of games - was ruled to be owned by one relatively minor player.)

          Accepting "the bad guys won" is not a good outcome, particularly in a case that affects so many more people than just the ones directly involved - and I think that the fact that I don't find it particularly surprising for you to suggest it is a little saddening.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 11 Dec 2017 @ 8:38am

    Heh, heh, Geigner! You've fully taken up Techdirt's habit of always WRONG!

    https://yro.slashdot.org/story/17/12/09/2030202/san-diego-comic-con-wins-trademark-suit-against-salt -lake-comic-con

    It's now proven how expert you are in trademark law -- less than me, who knew solely that SD had used it for many years!

    Let me give everyone a tip: whatever Techdirt states about a court case, believe the opposite. Techdirt is so thoroughly biased and reliably wrong -- 95% of time -- that YOU CAN MAKE MONEY ON BETS.

    reply to this | link to this | view in chronology ]


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