United States District Court, S.D. California
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.
ORDER (1) GRANTING DEFENDANTS AND PLAINTIFF'S
MOTIONS TO SEAL; AND (DOC. NOS. 89, 93, 164, 170, 184, 188,
192, 209, 217, 219, 224, 227) (2) DENYING AS MOOT DOCUMENTS
98, 160, AND 196.
Anthony J. Battaglia United States District Judge.
before the Court are both Plaintiff San Diego Comic
Convention (“Plaintiff”) and Defendants Dan Farr
Productions, Daniel Farr, and Bryan Brandenburg's
(collectively referred to as “Defendants”)
motions to file documents under seal. Pursuant to Civil Local
Rule 7.1.d.1, the Court finds the matters suitable for
decision on the papers and without oral argument. As
explained more fully below, the Court GRANTS both
parties' motions to seal, (Doc. Nos. 89, 93, 164, 170,
184, 188, 192, 209, 217, 219, 224, 227), and DENIES AS MOOT
Defendants' duplicative motions to seal, (Doc. Nos. 98,
160, and 196).
heart of this case revolves around Defendants' use of the
unhyphenated form of Plaintiff's trademark
“Comic-Con.” (Doc. No. 97 at 10.) Since 1970,
Plaintiff, a non-profit organization, has held the Comic-Con
Convention in San Diego, California celebrating comic art,
books, and other aspects of the popular arts. (Id.
at 9.) In total, Plaintiff holds four trademark registrations
with the United States Patent and Trademark Office
(“USPTO”): (1) COMIC-CON; (2) COMIC CON
INTERNATIONAL; (3) for the word-plus-design mark that
Plaintiff uses to advertise its products; and (4) for the
word mark ANAHEIM COMIC-CON. (Doc. No. 1 ¶ 13.)
Defendants Bryan Brandenburg and Daniel Farr are co-founders
of Defendant Dan Farr Productions. (Doc. No. 102 at 12.) On
September 5, 2014, Defendants held the first Salt Lake Comic
Con (“SLCC”). (Herrera Decl. Ex. 5 (“Farr
Depo”) 11:4-9, Doc. No. 95-7.) In sum, Plaintiff
contends that Defendants have used “Comic Con” to
advertise their event, which is identical to or confusingly
similar to Plaintiff's family of trademarks. (Doc. No. 1
August 7, 2014, Plaintiff filed its complaint against
Defendants asserting causes of action for (1) federal
trademark infringement; and (2) false designation of origin.
(Doc. No. 1.) On September 22, 2014, Defendants filed their
answer to the complaint with a counterclaim against
Plaintiff. (Doc. No. 16.) On June 23, 2017, the last day for
dispositive motions to be filed, both parties filed the
present matters, their motions to file documents under seal.
(Doc. Nos. 89, 93, 164, 170, 184, 188, 192, 209, 217, 219,
have historically recognized a “general right to
inspect and copy public records and documents, including
judicial records and documents.” Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597 & n.7 (1978).
“Unless a particular court record is one
‘traditionally kept secret, ' a ‘strong
presumption in favor of access' is the starting
point.” Kamakana v. City & Cnty. of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
1122, 1135 (9th Cir. 2003)). In order to overcome this strong
presumption, a party seeking to seal a judicial record must
articulate justifications for sealing that outweigh the
public policies favoring disclosure. See Kamakana,
447 F.3d at 1178-79. “In turn, the court must
‘conscientiously balance the competing interests'
of the public and the party who seeks to keep certain
judicial records secret.” Id. at 1179
considering these interests, if the court decides to seal
certain judicial records, it must ‘base its decision on
a compelling reason and articulate the factual basis for its
ruling, without relying on hypothesis or
conjecture.'” Id. (quoting Hagestad v.
Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). However,
where the material is, at most, “tangentially
related” to the merits of the case, the request to seal
may be granted on a showing of “good cause.”
Ctr. For Auto Safety v. Chrysler Grp., LLC., 809
F.3d 1092, 1097 (9th Cir. 2016).
and Defendants have filed a tsunami of motions to seal that
relate to their motions for summary judgment and motions to
exclude still pending before the Court. The Court notes that
the majority of the documents both parties seek to seal are
based on the protective order filed on January 20, 2016.
(Doc. No. 46.)
request that the Court file under seal (1) its memorandum of
points and authorities in support of their motion to exclude
and exhibits three and four to the declaration of Michelle A.
Herrera stating that they contain confidential financial
information, (Doc. No. 89); (2) exhibits two through nine
attached to the declaration of David Glanzer in support of
its motion for summary judgment as it expresses in detail
Plaintiff's efforts to enforce its trademark over the
past several years, and contains confidential litigation and
settlement strategies, (Doc. No. 93); (3) its opposition to
Defendants' motion for summary judgment based on
abandonment and estoppel, and exhibits 1, 4, 10, 11, 12, 13,
14, 18, 19 and 20 attached to the declaration of Callie
Bjurstrom as the documents consist of confidential agreements
and correspondence regarding infringement claims and
potential settlement discussions, (Doc. No. 170); (4) its
reply to Defendants' opposition to Plaintiff's motion
to exclude as it discloses confidential financial
information, (Doc. No. 184); and (5) its reply to
Defendants' opposition to its motion for summary judgment
and exhibit one to the declaration of Michelle Herrera, as
Defendants designated the transcript as confidential under
the protective order, (Doc. No. 188).
request the Court seal (1) their motion for summary judgment
based on genericness, abandonment, and estoppel, as well as
exhibits 2, 3, 4, 5, and 7 to the declaration of Jessica D.
Garcia and exhibits 4, 5, 6, 8, and 11 to the Declaration of
Daniel R. Barber in support of their motion for summary
judgment, (Doc. Nos. 217, 219); (2) their opposition to
Plaintiff's motion for summary judgment as well as
exhibits 2, 3, 4, 9, 10, 11, 12, 13, and 15 to the
declaration of Rachel Jacques as Plaintiff's contend they
contain sensitive and non-public information, (Doc. No. 224);
(3) their opposition to Plaintiff's motion to exclude,
and exhibits B, D, and E to Daniel Barber's declaration
in support of their opposition, and the testimony of Jeffrey
P. Kaplan, and Clarke B. Nelson, as these documents were
given protective designations by Plaintiff, (Doc. No. 164);
(4) their “corrected” declaration of Jessica D.
Garcia in support of their motions for summary judgment,
(Doc. No. 192); and (5) their reply in support of their
motions for summary judgment, exhibits 2, 3, 4 to the
declaration of Daniel R Barber, and the declaration of Daniel
Farr, (Doc. No. 227).
the Court finds the sealing of the documents at issue
appropriate in the instant matter. First, the Court notes
that it is cognizant that the compelling reasons standard is
a strict one. However, case law makes clear that motions to
seal documents that will cause “competitive harm”
to a business are generally weighed in favor of sealing.
See Apple Inc. v. Samsung Elec. Co., 727 F.3d 1214,
1221 (Fed. Cir. 2013); see also In re Elec. Arts,
Inc., 298 F. App'x 568, 569 (9th Cir. 2008) (finding
that the Ninth Circuit abused its discretion when it refused
to seal “pricing terms, royalty rates, and guaranteed
minimum payment terms” found in a license agreement);
Nixon, 435 U.S. at 598 (holding that “sources
of business information that might harm a litigant's
competitive standing” may give rise to a compelling
reason to seal). Additionally, the Court highlights that in
regards to the documents that were given protective
designations by both Plaintiff and Defendants, it has already
been determined that “good cause exists to protect
[the] information from being disclosed to the public by
balancing the needs for discovery against the need for
confidentiality.” Phillips v. Gen. Motors
Corp., 307 F.3d 1206, 1213 (9th Cir. 2002) (internal
quotation marks omitted).
on the foregoing, the Court finds that balancing the
public's right of access to the listed documents does not
outweigh the compelling and good reasons to seal.