In relation to a long-fought and contentious trademark dispute involving the COMIC CON mark, the US Court of Appeals for the Ninth Circuit issued a brief but definitive opinion, finding that certain district-court-ordered prior restraints on the defendant’s speech pertaining to the ongoing trademark litigation violated the First Amendment. In Re: Dan Farr Productions; Bryan Brandenburg; Daniel Farr, Case No. 17-72682 (9th Cir., Oct. 10, 2017) (per curiam).

This case, decided on petition for writ of mandamus, arose from an ongoing trademark infringement dispute filed in 2014 by San Diego Comic Convention (SDCC) against the producers of the Salt Lake Comic Con, Dan Farr Productions and affiliated individuals (together, Dan Farr) over Dan Farr’s use of the trademarks COMIC-CON or COMIC CON. In addition to allegations that the COMIC CON trademark is generic, descriptive and otherwise abandoned by SDCC, Dan Farr had also taken to the court of public opinion by posting to websites and social media platforms its own thoughts on the merits of the case, third-party news articles discussing the dispute, and publicly available documents from the district court docket. Dan Farr claims it seeks “moral and material” support from other comic fans who also disagree with the premise of the trademark dispute and SDCC’s claims of exclusivity over the COMIC CON mark—especially when “comic cons” have been held by third parties in hundreds of venues across the United States.

In response to the Dan Farr online campaign, SDCC petitioned the district court for a protective order, claiming that Dan Farr’s objective was to taint the jury pool. After reviewing evidence consisting of various social media posts, the district court granted a suppression and disclaimer order on grounds that the Dan Farr posts threated SDCC’s right to a fair trial. The order was two-pronged in that it prohibited certain online statements pertaining to the case and dictated the form in which public court documents could be displayed online, while also requiring that Dan Farr post a disclaimer on websites, social media or other news outlets essentially describing the terms of the district court’s order.        

In taking up Dan Farr’s petition for a writ of mandamus, the Ninth Circuit held that the court-ordered prior restraints on Dan Farr’s speech violated the First Amendment. The panel concluded that the suppression and disclaimer orders prohibited speech that did not pose a clear and present danger to a fair trial. Moreover, the court explained that prior restraint is not the least restrictive means of ensuring a fair trial. On this point, the Court concluded that Dan Farr’s posts would not irreparably taint the applicable jury pool, and noted that well-established doctrines on jury selection and the court’s inherent management powers provide an alternative, less restrictive means of ensuring a fair trial. Thus, the Court granted the petition and ordered the district court to vacate the suppression and disclaimer order.