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In re Dan Farr Productions

United States Court of Appeals, Ninth Circuit

October 26, 2017

In re: DAN FARR PRODUCTIONS; BRYAN BRANDENBURG; DANIEL FARR.
v.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, SAN DIEGO, Respondent, DAN FARR PRODUCTIONS; DANIEL FARR; BRYAN BRANDENBURG, Petitioners, SAN DIEGO COMIC CONVENTION, Real Party in Interest.

          Submitted October 10, 2017 [*] San Francisco, California

         Petition For Writ Of Mandamus D.C. No. 3:14-cv-01865-AJB-JMA

          Michael I. Katz and L. Rex Sears, Maschoff Brennan PLLC, Irvine, California, for Petitioners.

          Callie R. Bjurstrom, Peter K. Hahn, and Michelle A. Herrera, Pillsbury Winthrop Shaw Pittman LLP, San Diego, California; Kevin M. Fong, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California, for Real Party in Interest.

          Before: WARDLAW, GOULD, and WATFORD, Circuit Judges.

          OPINION

          PER CURIAM.

         This petition for a writ of mandamus arises in the context of a hotly contested trademark action initiated by San Diego Comic Convention ("SDCC") against the producers of the Salt Lake Comic Con-Dan Farr Productions, Daniel Farr, and Bryan Brandenburg ("Petitioners")-over the use of the mark "comic-con" or "comic con." The case has drawn nationwide attention and discussion on traditional and social media alike, in part because "comic cons" have been held in hundreds of venues across the United States. Because defendants actively participated in the public discussions over the internet, on various websites and through social media platforms, including Twitter feeds and Facebook postings, SDCC successfully moved for a sweeping set of "suppression orders" prohibiting Petitioners from expressing their views on the pending litigation and from republishing public documents over social media platforms. Instead, the court ordered Petitioners to prominently post on their social media outlets its order prohibiting comments about the litigation on social media, dubbing this posting a "disclaimer." Petitioners assert that the court-ordered prior restraints on their speech violate the First Amendment. We agree, and order that the district court vacate the "suppression" and "disclaimer" orders.

         BACKGROUND

         SDCC is a non-profit corporation dedicated to the appreciation of comics and other popular arts through events, including its "Comic-Con convention" in San Diego, California. Petitioners produce Salt Lake Comic Con, which is a comic and popular arts convention in Salt Lake City, Utah. In 2014, SDCC filed this federal trademark action against Petitioners, alleging that their use of the term "Comic Con" infringes on SDCC's "COMIC-CON" family of service marks and constitutes false designation of origin under the Lanham Act. Petitioners filed an answer and counterclaims against SDCC, in which they allege that SDCC has abandoned the trademarks asserted against them and that the trademarks are generic and descriptive. The district court denied Petitioners' subsequent motion to amend their defenses and counterclaims to allege that SDCC procured its trademark registrations by fraud. Trial is scheduled to begin on November 28, 2017.

         Throughout the litigation, Petitioners have posted on their websites and social media platforms various news articles on the case, documents that are publicly available on the district court docket, and their own opinions on the merits of the case and SDCC's conduct. Petitioners assert that they are seeking moral and material support from comic fans everywhere who also use the term "comic con, " and that the target audience of their speech is "people outside the venue, where the litigation's effects will be most felt."[1]

         On July 6, 2017, SDCC moved the district court for a "protective order" to prohibit Petitioners from making public statements prior to and during trial on certain topics relevant to the merits of the case. SDCC argued that Petitioners' objective is to "taint[] the jury pool" and "win this case in the court of public opinion." In support of its motion, SDCC submitted evidence of Petitioners' numerous social media posts that express their opinions on the merits of the case and user responses thereto; two of Petitioners' press releases, one of which "boast[s] they have secured more than 200, 000 media articles reporting on the case" and "claim[s] the majority are overwhelmingly favorable to [Petitioners'] case"; pages from Petitioners' website with links to news articles on the case and documents filed in the district court; and one 2014 online magazine article that quoted Petitioner Brandenburg.

         The district court granted the motion in part, concluding that Petitioners' comments, posts, and actions were threatening SDCC's constitutional right to a fair trial. The order prohibits Petitioners from commenting on "topics that relate to":

(3) Any statement that accuses, suggests, implies, or states that SDCC lied and/or committed fraud (other than in documents to be filed with the Court);
(4) Any statement about the genericness of the term comic con (other than in documents to be ...

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