Trademark Case Too 'Banal' To Justify Social Media Gag Order

Author:Mr David Kluft
Profession:Foley Hoag LLP
 
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Before the social media era really kicked into gear, I was representing a defendant in a defamation case who was being sued by a very wealthy plaintiff. Because of his charitable generosity, the plaintiff's name was on everything in town (I'm not saying which town), including schools, buildings, bus stops and highway exit signs. There was even (I swear this is true) a statue of the plaintiff's mother in the city park across from the courthouse. We moved to change the venue, on the theory that the defendant could not get a fair trial because jurors literally could not travel from their homes to the courthouse without being bombarded with information about how wonderful our opponent was. The case settled before this novel motion was tested.

Now, in the social media era, the problem I was worried about back then can pop up in any case. If a litigant builds up a sufficient social media following and gets a few Facebook posts or tweets to go viral- VOILA! — tainted jury pool. At least that was the theory behind the gag order issued by the Southern District of California in San Diego Comic Convention v. Dan Farr Productions. However, the Ninth Circuit recently vacated that order, finding among other things that a "run-of-the-mill" trademark case just wasn't important enough to justify a prior restraint on speech.

Background: Battle of the COMIC-CONs

In August 2014, the organizers of the San Diego Comic-Con ("SDCC"), which has been doing business since 1975 and is the owner of the registered COMIC CON mark, filed a trademark infringement lawsuit against the organizers of a rival "Comic Con" in Salt Lake City ("SLCC"). SLCC, noting that over a hundred other comic book conventions also use some form of the COMIC CON mark, asserts in its defense that the mark is descriptive, that it has become generic, and that SDCC obtained its registration by fraud.

SLCC, perceiving itself as the David to SDCC's Goliath, also did what many a David does nowadays - it took to social media and rallied the troops in favor of the little guy. SLCC uploaded court documents, provided a running commentary on case developments, and encouraged online discussion around its accusation that SDCC engaged in "fraud." This campaign was wildly successful, according to SDCC, which asserted that its reputation was smeared and that SLCC secured "more than 200,000 media articles . . . favorable to" SLCC. Internet users took the bait and chimed in, largely agreeing that "SLCC is awesome"...

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