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Comic-Con Trademark Trial

I have a long history with San Diego Comic-Con. The first San Diego Comic-Con happened in 1970, six years before I was born, so I missed that one. I first attended in 1988, when I was not yet 12 years old. As a teenager, I went as a volunteer. And I’ve had the pleasure of appearing as a presenter in the Comic Book Law School® series since 2008. I’m an official Comic-Con Professional, for what that’s worth.

Over the years, lots of people have attended a “comic con” that wasn’t the one and only San Diego Comic-Con. Most of these conventions are not actually affiliated with San Diego Comic-Con. To make it a bit more confusing, some years ago San Diego’s convention began to call itself Comic-Con® International: San Diego, although the logo makes it look a bit like “San Diego Comic-Con International.”

Nonetheless, since 2007 COMIC-CON has been a registered trademark owned by “San Diego Comic Convention”, along with several other trademark registrations. (OK, for the rest of this post, I’m calling the owners of the San Diego convention “SDCC”). They Like most trademark owners, SDCC wants to hold on to its rights, and, when it comes across parties that they perceive to be infringing on their trademark, to either enter into a licensing agreement or get the infringer to cease and desist.

This has led to an ongoing battle with Dan Farr Productions, who put on Salt Lake Comic Con. After several years of legal wrangling (my favorite kind of wrangling), SDCC and Dan Farr are headed to an actual jury trial scheduled for this November.

Click here to learn the basics about trademarks

The key to the case seems to be whether or not “Comic-Con” is a generic term that is used to refer to a convention for fans of comics, sci-fi, fantasy, and the like, or whether it’s properly a trademark. If “Comic-Con” is a trademark, then SDCC will presumably have the exclusive right to control its use as such. For more on generic terms vs. trademarks, check out this 2014 blog post about Pretzel Crisps.

Judge Anthony Battaglia’s pretrial ruling, which can be read here, seemed to lean in favor of SDCC’s arguments. Specifically, the ruling allowed SDCC to present evidence to the jury of a survey showing that more than 80 percent of responding consumers believed that “Comic-Con” was a brand name (or trademark) rather than a generic term. On the other side, Dan Farr attempted to introduce the testimony of a linguist who would argue that the term is generic; the Judge denied that request. This, plus the presumption afforded by SDCC’s federally registered trademarks*, makes it an uphill battle for Dan Farr to prove that the term is or has become generic.

We’ll see if the San Diego-based jury decides in favor of SDCC. The outcome of this trial may have a significant impact on the ever-growing fan convention industry.

* This is why you should register your trademarks, people!

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