Judge Issues Gag Order in Comic Con Suit

Salt Lake Comic Con’s Bryan Brandenburg has worked hard to gain public support for his side in the trademark infringement suit brought by San Diego Comic-Con. He’s been so successful at generating favorable publicity that SDCC’s lawyers asked Judge Anthony Battaglia to impose a gag order on the litigants, which he granted July 18.

San Diego Comic-Con’s request for a protective order played up Brandenburg’s own press coverage claims as a basis for requesting the order:

Since the inception of this dispute, Defendants have brazenly engaged in a strategic public campaign to disparage SDCC and “win this case in the court of public opinion.” Defendants’ public campaign has included statements made in numerous press releases, news articles, on websites and on social media including Facebook and Twitter. Indeed, Defendants boast they have secured more than 200,000 media articles reporting on the case that are “favorable” to Defendants.

Additionally, many of the statements made publicly by Defendants are misleading, prejudicial, inflammatory, or false. These include numerous claims that SDCC lied and/or committed fraud on the government in order to obtain its trademarks.

(Brandenburg’s fraud allegations are covered here.)

The complaint continues:

Defendant Bryan Brandenburg consistently disparages SDCC and/or its board members on social media by suggesting SDCC lies and engages in other unethical behavior.  Brandenburg’s comments are designed to harm SDCC and incite others on social media to engage in disparaging discussions about SDCC. Moreover, Brandenburg’s comments about SDCC almost always relate to this litigation and the suggestion that the dispute is frivolous.  Defendants repeatedly litigate their case by using media outlets to mischaracterize the parties’ positions and taint the public’s perception regarding the issues in dispute in this case.  Defendants’ media campaign is increasing in intensity as this case nears trial.  Defendants’ goal is to win this case by using media outlets to tarnish the reputation of SDCC and taint the jury pool.  As Defendant Bryan Brandenburg stated in one of Defendants’ many press releases, “I am asking for support from the community and all the powers of the Universe to bring victory to us in this case.”

Judge Anthony Battalgia, though motions for summary judgment in the case are still pending, seems to have been swayed by the argument that publicity is tainting the jury pool. The Hollywood Reporter, in “Comic-Con: This Year’s Convention Comes With a Judge’s Gag Order” explains the order, which denies part of the relief requested by SDCC while granting the most important items:

…Battaglia rejects a move to stop Farr and Brandenburg, and those associated with them, from making any false or misleading statement about San Diego Comic-Con or the merits of the dispute. That would be an unconstitutional prior restraint, the judge concludes.

However, accepting evidence that “the venire is being influenced through social media dialogue,” the judge is preventing both sides from making statements accusing, suggesting or implying that San Diego Comic-Con lied or committed fraud. Additionally, the parties aren’t allowed to discuss the alleged genericness of the term “comic con,” how the mark may or may not be descriptive, and whether San Diego Comic-Con abandoned its trademark rights.

The parties are being allowed to post court papers, but only in full and without further comment. The judge is also warning that violation of the order will warrant strong sanctions.

There’s a livelier article at Techdirt, “San Diego Comic Con Gets Gag Order On Salt Lake Comic Con”, where the writers are still pissed that SDCC subpoenaed them in 2015 about their coverage of the suit:

You can read the demand for a protective order here or below, and if I had to summarize it, it’s basically: “it’s no fair that Salt Lake Comic Con is getting good press coverage and we’re being mocked, so the court should silence them.” I read through the document and I kept expecting more… and… that’s really it. They literally complain that they’re losing in “the court of public opinion” and argue that it’s somehow unfair that one side is talking about this case publicly and they should be barred from any further conversation. And, it gives some more context to the paranoid view that was clear in the subpoena we received: SDCC and/or its lawyers are so focused on the negative press coverage that they seem to assume that something more nefarious is going on… beyond the basic likelihood that lots of people think this lawsuit is over-aggressive bullying by SDCC.

And about the gag order itself, Techdirt’s Mike Masnick says:

I have trouble seeing how the first two are unconstitutional prior restraint, but the rest are allowed to be gagged — especially something as mundane as discussing whether comic con is generic or descriptive. But, really, since the court apparently doesn’t want anyone discussing that kind of thing, perhaps go ahead and have a discussion in the comments about that very question. And, in case SDCC’s high priced lawyers are looking at this yet again, I’ll remind you once again that we have no relationship of any kind with the organizers of the Salt Lake City event. We just don’t like big bullies silencing people or filing questionable lawsuits.

Bryan Brandenburg’s only public statement since the order has been to make the announcement ordered by the court. He told Facebook followers:

United States District Judge Anthony J. Battaglia of the United Stated District Court for the Southern District of California has ordered that no editorial comments, opinions, or conclusions about San Diego Comic Convention v. Dan Farr Productions, LLC, et al., No. 14-cv-1865 AJB (JMA) (S.D. Cal.), be made on social media, and that no highlights or summaries of the status of the proceedings or the evidence presented be made on social media.

Naturally, fans like Chris Hamatake were quick to observe:

But there’s no restriction on fans commenting or expressing opinions, right? As I’m not part of the litigation process, I don’t see that anything posted by fans could affect the legal process either way…

Brandenburg laconically agreed, “No,” and his Facebook commenters immediately resumed their vocal support for SLCC.

[Via Petréa Mitchell.]

4 thoughts on “Judge Issues Gag Order in Comic Con Suit

  1. Is Battaglia looking for a job in what’s left of the Trump Administration? Thank god SDCC didn’t also ask him to do anything like round Pi to 3.1

    Truly, the folks who run SDCC are special snowflakes in the eyes of the court. I guess The Golden Rule really does apply- them’s with the Gold truly can make the rules.

  2. SDCC has no right to trademark “Comic Con” and if they prevail, it will be another travesty of our system. The use of “Comic Con” predates the SDCC and was well know domestically and internationally when Phil Seuling was alive and running Comic Con here in New York City. That alone should invalidate any trademark claim that SDCC thinks they may have.

  3. I think SDCC just Streisand Effect-ed themselves with this.

    Time to flit around social media and comment.

  4. Pingback: Ninth Circuit Lifts Gag Order in SDCC v SLCC Suit | File 770

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