Legal Geek No. 121: Comic Con Stands Alone

Welcome back to Legal Geek. This week, we review the decision in California this week regarding San Diego Comic Con and the ability of the organizers to protect against competition using the trademarked name Comic-Con.

https://archive.org/details/LegalGeekEp121

San Diego Comic Convention is the organizer of the huge annual gathering of the nerds and stars known as Comic-Con, and they have acquired registered U.S. trademarks covering this name. When a Salt Lake City comic convention refused to stop using Comic-Con as part of its name, or pay a license fee for the privilege, San Diego Comic Con sued for trademark infringement. This week, a jury found that the trademark registration is valid, and that the Utah convention organizers infringed the Comic-Con trademark.

What this means is that an injunction will likely be obtained against the Utah convention, which will then have to change its name moving forward. Other conventions in Baltimore and elsewhere using the name may also be challenged and forced to abandon the name Comic-Con. Many are asking how can this be fair, when the term Comic-Con is so descriptive of the event covered by the trademark?

Trademarks are generally classified into four categories of distinctiveness depending on how related the mark is to the goods or services covered. These categories include generic, descriptive, suggestive, and arbitrary. Terms that are generic such as paper are not protectable by U.S. trademark registrations, and the same is true of marks that are merely descriptive. However, if a descriptive mark acquires secondary meaning indicating the source of the goods as a result of long time use and promotion in the marketplace, those types of marks can be registered.

According to the jury in California, that must be where Comic-Con fits. The jury rejected Salt Lake's defense that the term Comic-Con is generic. Despite this, a shortening of the phrase comic convention is precisely descriptive of what happens at these events, so the jury and the U.S. trademark office have both come to the conclusion that the San Diego organizers have done enough in their 50 years in the marketplace to make this name acquire so-called secondary meaning. While some may come to opposite conclusions, this is a fact-based analysis based on things like survey evidence of what consumers believe, and therefore is unlikely to be overturned on appeal.

This is just the reality of how U.S. law has drawn the lines between what is protectable and what is not, and it makes sense based on the desire to allow competitors to be able to fairly describe their products but not trade on the goodwill earned through long efforts and marketing of other entities.

The San Diego organizers do run the risk of losing the trademark rights if they do not adequately police the use by other conventions, so expect this enforcement effort to expand and continue. Should you boycott San Diego Comic-Con over this? I'd argue no because this doesn't stop other conventions from happening, it just means they have to use a different name like Comic Expo, or the like. I would posit that even the longer form Comic Convention is likely acceptable and not covered by the trademark here. The protection is narrowly tailored and can be easily worked around, and therefore should have no real long-term effect on nerds who attend all these conventions.

The Bottom Line is, you may not personally like that a term like Comic-Con is protected by trademark and monopolized by the San Diego convention, but nerd culture has survived similar circumstances before, like when the term superheroes was trademarked. Conventions with as much success as the Salt Lake one, as I hear anecdotally, can honestly build up their own alternative brand name and then enjoy the consumer goodwill from that name. So it's not the end of the world, but don't expect to be going to anything literally called a Comic-Con outside of San Diego anytime soon.

Thanks to CareyT and MajorSpoilers on Twitter for suggesting this hot topic.

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 120: Conflicts and Bias at the Supreme Court

Welcome back to Legal Geek. This week, we update you on an augmented reality game lawsuit we covered earlier, and then turn to rising issues of conflicts of interest at the Supreme Court and the need for better controls to avoid personal bias at the highest court of the land.

https://archive.org/details/LegalGeekEp120

A few months ago, Legal Geek covered the latest in a lawsuit pitting Milwaukee County in Wisconsin against augmented game makers like those who make Pokémon Go.  As you'll recall, Milwaukee County enacted an ordinance in February requiring augmented reality game developers to go through a rigorous approval process with several very expensive requirement to operate in Milwaukee's parks.  Candy Labs challenged this ordinance in federal court and won an injunction this summer against enforcement of the ordinance as potentially not being constitutional.

This case was slated to go to trial in a couple months, but a settlement agreement was reached this week.  Under the settlement, Milwaukee will not enforce the ordinance and will pay attorney's fees to Candy Labs for this lawsuit.  So rejoice Pokémon Go and other augmented reality game fans, as this legal victory should deter other localities from unfairly limiting use of public spaces to gamers like this.

Now to our main topic this week, conflicts of interest at the Supreme Court. 

To describe conflicts of interest simply, judges are to be conflicted out of a case when they have personal involvement, such as by owning company stock, or prior involvement as an advocate on one side of a case they would be adjudicating.  We don't want unfair bias in the court system, so when conflicts come up the judge is supposed to recuse themselves, AKA withdraw from the decision making.  All lawyers also do conflict checks regularly to avoid representing two companies or persons that would be opponents to one another in court, so it's not unique to judges, nor is it a new concept to these seasoned attorneys who become Supreme Court justices.

Earlier this month, Justice Kagan recused herself from an immigration case that's been in hearings and re-hearings at the court for over 18 months.  Despite participating in a first decision when the court had 8 justices and was deadlocked, and then participating in the oral arguments of the re-hearing this October, at no point in this process did Kagan or her staff identify the disqualifying conflict of interest she had from her prior job as a solicitor general.  If Kagan had recused herself in a timely fashion, this case would be long wrapped up, and there would be no risk of bias based on her significant involvement in the oral argument and part of the decision-making process.  But that did not happen here.

More troubling, this is the third straight year where this has happened on a Supreme Court case, with a late recusal by a Justice after significant participation in the case.  The other two cases involved stock ownership in a company with stakes on the line in a Supreme Court case.  How does this problem keep occurring, and why?

There are some formal standards and a Code of Conduct federal courts are supposed to follow, including automated software screening checks, but these were made by a conference of judges at all levels of the judiciary.  The Supreme Court believes that by constitutional mandate, they are one court and not subject to policies or rules being forced upon them by lower courts.  As a result, each justice handles these potential conflicts in their own independent way.  As we can see, that's not working perfectly.

It is vital for the fairness and transparency of the judiciary that the highest court in the land be free from unfair biases.  To accomplish that, the Supreme Court should institute at least some standard procedures to more quickly and accurately identify these issues for consideration before an oral argument is conducted.

The Bottom Line is, the public has faith in the courts because they are designed to be fair and impartial, but the Supreme Court has a long way to go to catch up to the rest of federal courts in avoiding conflicts and late recusals from cases.  In a country so divided in partisanship in the other branches of government, we have to hope the courts lead by example and fix problems like this.

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy