In re: DAN FARR PRODUCTIONS; BRYAN BRANDENBURG; DANIEL FARR.
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
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.
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.
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"
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.
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
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.
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 ...