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Sean P. Means: In battle of comic cons, Salt Lake is already winning

First Published Aug 01 2014 08:49AM      Last Updated Aug 04 2014 08:04 am

Gee, you drive a fancy sports car into the middle of a big party, and the people throwing the party get all huffy about it.

That, in a nutshell, is what sparked the war of words between Salt Lake Comic Con and the bigger, and more internationally recognized, San Diego Comic-Con International (which ended last Sunday).

In case you missed it — and the publicity machine behind the upstart Salt Lake Comic Con has gone into overdrive to make sure you didn’t — what happened is that lawyers for the San Diego event sent a "cease and desist" letter to the Salt Lake group, urging the Utahns to stop using the words "Comic Con," which the San Diegans have trademarked.



Bryan Brandenburg, Salt Lake Comic Con’s co-founder and chief marketing officer, told the Tribune’s Michael McFall this week that San Diego Comic-Con can’t force Salt Lake’s event to change its name — because the words "Comic Con" are used by dozens of similar events around the country.

The two events have quite different histories. San Diego Comic-Con has been around 44 years, growing into the largest event of its kind in the country — and a go-to location for Hollywood films and TV productions to tout their new product. Last weekend, presentations for next year’s "The Avengers: Age of Ultron," the "Batman vs. Superman" sequel, Christopher Nolan’s "Interstellar" and the upcoming "The Hunger Games: Mockingjay" were among the most hypeworthy events.

Salt Lake Comic Con is less than a year old, but it’s been a busy year. The inaugural event last September drew between 70,000 and 80,000 fans — a record for a first-year event. In April, a sister event, FanXperience, brought in 100,000 people to the Salt Palace Convention Center. (Disclaimer: I moderated panels at both Salt Lake City events; also, one of Salt Lake Comic Con’s sponsors is MediaOne, the company that handles the advertising and circulation arms of The Salt Lake Tribune and the Deseret News.)

As Salt Lake’s attendance grew, so did bad blood with San Diego organizers. Brandenberg told the Tribune that the parent company of San Diego Comic-Con was upset that the Salt Lake team scheduled FanX the same weekend as the San Diego organizers’ other event, WonderCon, in Anaheim, Calif.

Brandenburg told the Tribune that the April date was chosen because it was when the Salt Palace was available — and, when they set the date, WonderCon had not confirmed when it was happening.

But the capper, according to Brandenburg, may be the fact that Salt Lake Comic Con took its customized Audi — with the Salt Lake Comic Con logo emblazoned on the hood — down to San Diego last weekend. A lot of San Diego Comic-Con attendees got their picture taken with the car, adding to the publicity generated for the Salt Lake event.

Who might win if the trademark issue goes to court? I asked Amelia Rinehart, a professor at the University of Utah’s S.J. Quinney School of Law — and an expert on intellectual-property issues — how she would argue both sides of the case.

The San Diego side: "If I represented San Diego Comic-Con, I have several federal [trademark] registrations. Some of them are incontestable. … That means that I have very strong rights that are national in nature for things that associated with my mark: entertainment services, comic-book conventions, that sort of thing. … To the extent that other comic-book conventions are using the mark in a way that’s likely to confuse consumers about the origin of their services, I can shut them down if I want to. Or try to, anyway."

The Salt Lake side: "A strong argument would be that I am merely describing what I’m doing. It’s a comic-book convention, and ‘comic con’ is descriptive of that, and I’m using the term fairly just to describe what I’m doing. I think an alternative argument — if I was trying to get the mark canceled, which would eliminate all the rights for San Diego — would be that it’s generic for comic-book conventions. People just use that term as the thing itself. There’s no signaling of source by the term. It’s just a description of what’s going on, and generic for that thing."

Companies hire lawyers to fight quite diligently to protect their trademarks. Somewhere in my desk, I have a pre-emptive letter from the company that makes Rollerblade skates, urging me not to use the word "rollerblading" as a verb. (The occasion was a long-forgotten 1993 movie, "Airborne," that featured in-line skating.)

Many familiar words and phrases — like trampoline or raisin bran — were once trademarked, but became genericized because of repeated use. (Examples Rinehart uses in her law classes include shredded wheat, aspirin and the zipper.) There are also brand names, like Jeep and Xerox, that remain that way in part because corporate lawyers write stern letters to journalists like me.

"Those are folks who recognize they have a valuable thing that they could lose if it starts becoming a generic term," Rinehart said.

Defending a trademark in court can be expensive. "The touchstone for infringement would be a likelihood of confusion," Rinehart said. "That means collecting a lot of evidence, hiring a lot of experts, conducting a lot of surveys."

 

 

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