In a previous post, we analyzed the battle over the trademark COMIC CON, which is owned by the San Diego Comic Convention (SDCC) but has been used by over 100 other comic book convention organizers. SDCC brought suit against one of these alleged infringers, Dan Farr Productions, in 2014, but failed to secure summary judgment earlier this year.

Dan Farr himself has been discussing the case on social media, to SDCC’s ire. According to SDCC, Farr boasts of over 200,000 media articles reporting on the case and has tainted the jury pool in the Southern District of California. This sparked SDCC to seek a gag order preventing Farr from discussing the litigation on social media and requiring him to post a disclaimer on his social media pages. The district court granted SDCC’s request, but the Ninth Circuit reversed it shortly thereafter on constitutional grounds. The Ninth Circuit held that because civil trademark actions “involve issues that are far more banal than the subject matters of the criminal trials in which pretrial publicity has presented serious constitutional problems,” “pretrial publicity is less likely to threaten the fairness of trial in a large metropolitan area,” and because the disclaimer mandate “incriminates and disparages [Farr’s] previously expressed opinions” the gag order failed constitutional muster.

Takeaway: Companies that wish to limit chatter about ongoing litigation may find an uphill battle in curbing social media discourse after this case.