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Comic convention lawsuit: 'Genericide' in action?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

In our last post, we explored the issue of "genericide." As we discussed, the genericization of a product or a brand is something that attentive business people want to avoid. The risk is that if a trademark isn't defended and the product or service it's associated with becomes commoditized, it can erode the ability to optimize earnings.

So what does defending a trademark look like? The answer to that might be most easily shown through a case that is now headed for trial in Southern California. The focus of the issue centers on something as simple as a hyphen. Specifically, a jury will be asked to decide whether the term Comic Con has lost trademark status and whether the holders of the marks allowed the genericide to occur.

The battle has been underway since 2014. That's when the organizers of the San Diego Comic Convention initiated a suit claiming trademark infringement against the people behind the Salt Lake City Comic Con.

For the sake of background, it's helpful to know that the San Diego event has been around since 1970 and its organizers hold four registrations on the hyphenated rendition of Comic-Con. Last year's event drew a crowd of about 135,000 people. The Salt Lake City convention started in 2013.

The San Diego group is claiming that the use of the unhyphenated Comic Con term amounts to infringement and false designation of origin. The Salt Lake City side says in a counterclaim that the term is now generic. As evidence, it points to the fact that nearly every state hosts some sort of event with comic con in the title.

Both sides asked for summary judgment in their favor positions, but the judge in San Diego recently said no. He said there are still plenty of issues of fact that deserve to be sorted out by a jury.

The trial is set to start later this year.

Source: JDSupra.com, "Comic-Con’s Copycat Convention Suit Moves Forward," Manatt, Phelps & Phillips, LLP

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