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San Diego Comic Convention v. Dan Farr Productions

United States District Court, S.D. California

July 21, 2017

SAN DIEGO COMIC CONVENTION, a California non-profit corporation, Plaintiff,
DAN FARR PRODUCTIONS, a Utah limited liability company; DANIEL FARR, an individual; and BRYAN BRANDENBURG, an individual, Defendants.


          Anthony J. Battaglia United States District Judge

         Presently before the Court is Plaintiff San Diego Comic Convention's (“SDCC”) motion for a protective order. (Doc. No. 126.) Defendants Dan Farr Productions, Daniel Farr, and Bryan Brandenburg (collectively referred to as “Defendants”) oppose the motion. (Doc. No. 146.) Based on the arguments presented at the hearing held on July 14, 2017, and the evidence proffered by both parties, the Court GRANTS IN PART and DENIES IN PART SDCC's motion for a protective order.


         The contours of the instant case are straightforward. SDCC, a non-profit corporation formed in 1975 that is dedicated to the appreciation of comics through presentations and events, asserts that Defendants infringed on its family of service marks. (Doc. No. 1 ¶¶ 10, 13, 16.) Specifically, SDCC argues that Defendants' Salt Lake Comic Con produces the same type of convention that SDCC produces under its allegedly protected “COMIC-CON” marks. (Id. ¶ 17.) Based upon this, it is SDCC's allegation that Defendants purportedly unauthorized use of SDCC's family of marks is meant to capitalize on the goodwill and positive reputation of SDCC and to confuse and deceive consumers into believing that Salt Lake Comic Con is affiliated with SDCC. (Id. ¶ 24.)

         SDCC filed its complaint on August 7, 2014. (Doc. No. 1.) SDCC asserts two causes of action: (1) federal trademark infringement; and (2) false designation of origin. (Id. ¶¶ 32-48.) On June 23, 2017, both parties filed separate motions to exclude and motions for summary judgment. (Doc. Nos. 91, 95, 99, 106.)[1] The instant motion, SDCC's motion for a protective order, was filed on July 6, 2017, (Doc. No. 126), and on July 14, 2017, the Court heard argument for and against the motion. (Doc. No. 119 at 3.)


         A district court's order restraining extrajudicial comment about a pending case constitutes a prior restraint on those parties' first amendment right to free speech. Levine v. U.S. Dist. Court for Cent. Dist. of Cal., 764 F.2d 590, 594 (9th Cir. 1985). A court's entry of a prior restraint on speech is “one of the most extraordinary remedies known to our jurisprudence” and is thus subject to a strict scrutiny type analysis. Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 562 (1976). Despite this high standard to overcome, it is important to highlight that the “right to a fair trial, both in civil and criminal cases, is of the utmost importance to the administration of justice, and many courts have held that a trial judge has the authority to adopt reasonable measures to avoid injury to the parties by reason of prejudicial or inflammatory publicity.” Hammes Co. Healthcare, LLC v. Tri-City Healthcare Dist., Nos. 09-CV-2324 JLS (CAB), 2011 WL 6182423, at *18 (S.D. Cal. Dec. 13, 2011). Specifically, “[t]he Supreme Court has recognized that conflict between freedom of speech and the right to a fair trial is no less troubling in the non-criminal context.” Bailey v. Sys. Innovation, Inc., 852 F.2d 93, 97 (3d Cir. 1988); see also Nebraska Press Ass'n, 427 U.S. at 586 (“So basic to our jurisprudence is the right to a fair trial that it has been called ‘the most fundamental of all freedoms.'” (Brennan, J., concurring) (quoting Estes v. Texas, 381 U.S. 532, 540 (1965)).


         A. The Parties' Joint Motion for a Protective Order

         As an initial matter, the Court first turns to its order granting the parties' joint motion for entry of a protective order. (Doc. No. 46.) This order recognized that some of the documents and information being sought through discovery in the instant action, for competitive reasons, are normally kept confidential by both parties. (Id. at 2.) Thus, the Court found it appropriate to grant both parties' request that they refrain from posting, sharing, or disseminating documents that were deemed confidential by counsel. (Id. at 2- 11.)

         The Supreme Court has held that the “continued court control over [] discovered information does not raise the same spectre of government censorship that such control might suggest in other situations.” Seattle Times Co. v. Rhinehart, 104 S.Ct. 2199, 2207 (1984). Moreover, “it is significant to note that an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny.” Id. at 2208. Based upon this, the Court finds it appropriate to continue to enforce the protective order and its terms stated in Doc. No. 46.

         B. SDCC's Motion for a Protective Order

         The Court now turns to the merits of SDCC's motion for a protective order. First, based upon the nature of SDCC's requests, the Court finds that its protective order is a prior restraint. Compare Alexander v. United States, 509 U.S. 544, 550 (1993) (“The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.'”), with Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003) (holding that a protective order pursuant to Federal Rule of Civil Procedure 26(c) states that for good cause the court may issue a protective order to “protect a party or person from annoyance” including orders that limit the scope of disclosure to certain matters). Thus, for the remainder of this Order, the Court will refer to SDCC's request for a prior restraint as a suppression order.[2]

         SDCC asks that the Court proscribe Defendants from making any of the following statements prior to and during trial (1) any false or misleading statement about SDCC or any of its board members; (2) any false or misleading statement about the merits of this dispute; (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 filed with the Court); (5) any statement about whether the term comic con is descriptive; and (6) any statement about whether SDCC abandoned any trademark rights (other than in documents to be filed with the Court). (Doc. No. 126-1 at 12-13.) SDCC asserts that the suppression of these six statements is justified as Defendants have engaged in a willful and consistent strategy to win this case in the court of public opinion. (Id. at 6.) Specifically, SDCC contends that Defendants have circulated numerous press releases and articles and have employed social media to tarnish the reputation of SDCC and thereby influence the public including the jury pool. (Id. at 7.)

         Defendants retort that SDCC has not shown that any of its statements are false or that there is a clear and present danger to a fair trial. (Doc. No. 146 at 7-10.) Moreover, Defendants assert that SDCC has failed to provide evidence that the jury pool has been or will be tainted. (Id. at 11.) Thus, concluding that voir dire could cure any incidental exposure to ...

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