Jeffrey D. Allred, Deseret News
FILE – Attendees pose for a photo during a press conference at the state Capitol in Salt Lake City last January when the initial celebrity guest lineup for Salt Lake Comic Con FanX 2017 was announced.
SALT LAKE CITY — For three years, the founders of Salt Lake Comic Con have whipped up support from thousands of fans online as they insisted the name of their pop culture event does not violate a trademark.
But can they convince a 12-person jury in the heart of their rival’s hometown?
The legal feud between the relatively new Salt Lake event and its iconic predecessor, San Diego Comic-Con International, reaches a showdown Tuesday as the trademark dispute that began in the summer of 2014 goes to trial.
And as the potentially precedent-setting case plays out over the next eight days in U.S. District Court in San Diego, it will likely be tracked around the country by intellectual property attorneys, other pop culture events branding themselves as comic cons, and observant nerds who have followed the dispute from the beginning.
"It’s not just Salt Lake City, it has implications for the entire industry, and it’s a big big, industry right now," said Rob Salkowitz, a consultant and author specializing in entertainment and fan events.
"Everybody else in the business is going to be governed by this ruling when it comes down," Salkowitz said.
Officials from Salt Lake Comic Con and San Diego Comic-Con would not comment on the lawsuit on the eve of the trial.
Based on his research, Salkowitz estimates there are currently more than 1,000 fan events around the country, all netting between $500 million and $600 million in gross ticket sales each year and having billions of dollars of economic impact on their communities.
He credits much of that industry to years of work by San Diego Comic-Con, which grew its event from being a small gathering of people trading comics in a hotel basement to the pre-eminent event for media announcements, trailer premieres and appearances by A-list celebrities.
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That success, coupled with nerd culture’s adoption into the mainstream, has fueled a surge of comic and pop culture events around the country, including in Salt Lake City in 2013.
Since it first filed its cease-and-desist order and lawsuit, San Diego Comic-Con has claimed its new rival was trying to profit off its success when organizers drove a Salt Lake Comic Con branded Audi around San Diego during its annual event.
Salt Lake Comic Con countered with a lawsuit of its own, and will try to convince jurors that the term "comic con" has become a generic part of American lexicon and cannot be protected by trademark.
It’s called "genericide," University of Utah law professor Jorge Contreras explains, and it has come up through the past three years as his intellectual property students have debated the case in class.
"Some trademarks can become so widely used in commerce that they just become ordinary words in the English language," Contreras explained. "The Salt Lake Comic Con would have to show that people, members of the public, generally when you say ‘comic con’ they just think of a convention involving comic books or whatever, as opposed to the comic con that occurs in San Diego."
While he sees a lot of "home team" pride in the discussions in his classroom, Contreras says his students have never come to a consensus on the issue.
"We’re all waiting to see how it turns out," he said.
San Diego Comic-Con, a nonprofit organization that has been around since 1970, has a trademark on "comic-con" with a hyphen. It was unsuccessful in its 1995 bid to trademark "comic con," with a space.
Because it wasn’t using the hyphen, and in the light of dozens of fan events using variations of the name around the country, Salt Lake Comic Con’s organizers maintain they had every reason in 2013 to believe they were in the clear to use the term.
However, Contreras says the absence of a hyphen might not make much of a difference.
"What you really have to look at is whether there’s consumer confusion," Contreras said. "One of the things you look at is the similarity of the terms and these are very similar."
Evan Strassberg, a Salt Lake-based commercial litigator and self-described "closet geek," isn’t involved in the case but has kept an eye on the case from the beginning, as he suspects many trademark attorneys are doing.
He doubted the dispute would ever get to trial. He even penned an editorial piece in August 2014 breaking down the dispute and speculating that, with so many fan events calling themselves comic cons, the San Diego convention was fighting an uphill battle.
As the lawsuit marched on, he continued to believe that rather than pour millions of dollars into legal fees, the two events would settle.
He was wrong.
"You don’t have a lot of these cases that really go to trial, where you actually have a resolution on the merits by a jury, on issues like these," Strassberg said. "Given that (San Diego Comic-Con) is a very well-known entity, whether or not it is a brand, I’m sure there are a lot of people paying attention to this."
But as the case launched into national headlines, Strassberg says he was right on the money in one point of his 2014 opinion: The legal fight has been publicity gold for Salt Lake Comic Con.
"I’m sure (Salt Lake Comic Con) has received a great deal of free — other than attorneys fees — publicity surrounding the event that probably would not have existed but for the lawsuit," Strassberg said.
While Salt Lake Comic Con launched vocal opposition to the lawsuit, speaking to reporters and keeping its fans up to date online, San Diego Comic-Con was quiet.
Salt Lake Comic Con has fully embraced its "David and Goliath" position in the case, finding fervent support from its fans, Salkowitz says.
"There’s a sentimental sweet spot, not just for comic fans but for everybody, to say you don’t like to see the big, you know, bad guy picking on the mom and pop operation," he said. "The problem is they don’t have to convince 200,000 fans, they’ve got to convince 12 people on a jury."
When a fan event calls itself a comic con and someone associates it with San Diego Comic-Con, regardless of whether a formal connection exists, Salkowitz says the California organization believes its carefully crafted reputation is impacted.
"There’s a confusion around that, and (San Diego) feels like unless they take steps to protect that, they’re going to get all the blowback from all of these things that call themselves comic cons without getting any of the benefits of it or having any say in what the fan experience is," Salkowitz said.
Recently, San Diego Comic-Con has been connecting with smaller events around the country, giving them its blessing to use the trademark, Salkowitz explained. On Monday, such a partnership was announced with Rose City Comic Con in Portland, Oregon.
Salkowitz speculates San Diego came down on Salt Lake Comic Con, while leaving other events using the term untouched, because of the 2014 trip in the Audi. Court filings by San Diego Comic-Con point to emails between Salt Lake Comic Con’s founders, Dan Farr and Bryan Brandenburg, discussing their hope of using the car to "leverage" San Diego’s popularity.
But Salkowitz sees strength in Salt Lake Comic Con’s position that "comic con" was a generic term even before San Diego secured its trademark.
However, in hearings leading up to the trial, U.S. District Court Judge Anthony Battaglia granted motions from San Diego’s lawyers restricting Salt Lake from presenting evidence to the jury that the term has been in use by multiple organization since the 1960s.
The judge’s rulings also prohibited any argument by Salt Lake Comic Con alleging San Diego fraudulently claimed in 2006 trademark applications it had had "exclusive" use of the term for years, despite knowing many third parties had long been using variations of the name, and barring references to a 1995 dispute between San Diego Comic-Con and Chicago Comicon over its name.