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San Diego Comic Convention v. Dan Farr Productions (2018)

October 16, 2018

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Horvitz & Levy LLP protected its corporate and individual clients from liquidation or bankruptcy so they can pursue their appeal from a suspect trademark infringement judgment.

Defendants described their comic fan conventions in Salt Lake City as “Salt Lake Comic Con.” Many other cities had similar events using the commonplace term “comic con” in their name. The promoter of the largest one, San Diego Comic Convention, sued defendants for trademark infringement. A jury found no willful infringement and awarded just $20,000 in damages. But the district court transformed the judgment into a death sentence by declaring the case “exceptional” based on how it was defended, and then awarding over $3.9 million in attorney fees and costs. The district court also imposed injunctive relief that would have irreversibly damaged defendants’ valuable online presence. San Diego Comic Convention then undertook aggressive enforcement efforts in an apparent attempt to eliminate a competitor and impede appellate review.

The Ninth Circuit granted defendants’ emergency motion for a stay of enforcement of the judgment pending appeal. Defendants argued that their appeal would raise serious questions about (1) the verdict because the district court excluded a critical genericness defense and other key evidence, (2) the fee award because it punished defendants for engaging in unexceptional zealous advocacy, and (3) the injunction because it prohibited conduct that was not trademark infringement. Defendants also argued that San Diego Comic Convention would be more likely to collect on the judgment if defendants’ business was not destroyed while their appeal was pending. Less than a week after defendants filed their motion, the Ninth Circuit granted all the relief they had requested.