San Diego Comic-Con Petitions Judge To Have Salt Lake Comic Con Pay Its Attorney's Fees, Bar It From Calling Itself A 'Comic Convention'
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Perhaps you thought that the legal drama between the famous San Diego Comic-Con and the Salt Lake Comic Con was over. Our ongoing coverage of this trademark dispute stemming from SDCC somehow having a valid trademark on "comic-con", a shortened descriptor phrase for a comic convention, largely concluded when SDCC "won" in court, being awarded $20,000 after initially asking for $12 million in damages. With the focus now turning to the roughly gazillion other comic conventions that exist using the "comic-con" phrase in their names and marketing materials, this particular dispute seemed to have come to a close.But not so much, actually. In post-trial motions, SDCC petitioned Judge Battaglia to consider the case "exceptional" so that SDCC can recover attorney's fees from SLCC. The arguement for SDCC appears to mostly be that they spent a shit-ton of money on attorneys for the case.U.S. District Judge Anthony Battaglia heard a host of posttrial motions Thursday, including San Diego Comic-Con’s request for over $4.5 million in attorney fees which have already been paid in full. San Diego Comic-Con attorney Callie Bjurstrom with Pillsbury Law told Battaglia Thursday he should find the case is “exceptional” so that attorney fees and costs can be awarded.“This was a very expensive case; the reason this case was so expensive was because of defendants and their counsel and the way they litigated this case,” Bjurstrom said. It will be interesting to see how Judge Battaglia rules on the assertion that SLCC's defense of itself warrants its paying SDCC's attorney's fees. What exactly was SLCC supposed to do, not try to defend itself in the best way possible? One also wonders if SDCC would be petitioning for attorney's fees had the jury found that SLCC's infringement was not willful, resulting in the paltry $20k award. Perhaps, perhaps not. What this sure looks like is the SDCC realizing that this "win" came at the cost of a hilariously large amount of money and it is attempting to mitigate that loss.SDCC also petitioned the court to bar SLCC from using its trademarks. That sort of thing would be par for the course except for two things. First, again, this trademark is ridiculous. It's purely descriptive. Second, hammering home that fact, SDCC doesn't want SLCC to even be able to properly describe the type of event it is.But San Diego Comic-Con’s request went a step further than simply asking Battaglia to enjoin the Salt Lake convention operators from infringing its trademarks: it asked the judge to bar the Salt Lake convention from using the words “comic convention” or phonetic equivalents to “Comic Con” or “comic convention.” That request should lay plain how dumb this all is. If a comic convention cannot refer to itself as such because that is too close to the trademark "comic-con", then it should be plain as day that "comic-con" is purely descriptive and, therefore, invalid as a trademark. I wouldn't be surprised to see this petition to the court turn up at the USPTO in a bid to cancel SDCC's trademark entirely. That's certainly what I would be doing if I were heading up any of the hundreds of comic cons out there.
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posted at: 12:06am on 05-Jun-2018
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Appeals Court Rolls Its Eyes At Goverment's Attempt To Dodge FOIA Litigation By Pretending It Didn't Know Who Was Seeking Documents
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Government agencies, for the most part, treat public records requesters as weeds in the garden of governance: a pest that can never be fully eradicated, but rather tolerated with as much annoyance as possible. Whatever can't be made to disappear with hefty fee demands or months of stonewalling will be given as little attention and compliance as possible. This attitude has turned FOIA requesters into frequent litigators seeking to hold one branch of the government accountable by using another.When Cheryl Brantley, a member of activist group A Better Way for BPA, requested records from the Bonneville Power Administration (run by the Department of Energy), she filled out the agency's online FOIA form and waited. And waited. And waited some more before finally suing.BPA responded by declaring A Better Way had no standing to file a lawsuit. It decided to get hypertechnical about Brantley's FOIA submission, claiming no one but Brantley herself should be allowed to sue.The district court granted the BPA's motion to dismiss for lack of standing. A Better Way appealed this decision, placing it before the Ninth Circuit Court of Appeals. The court is completely unimpressed with the BPA's attempt to turn a meaningless technicality into a motion to dismiss. From the decision's [PDF] summary: [h/t Brad Heath]The government challenged the group’s standing and the district court dismissed the suit, saying that the submitted form did not adequately identify the organization as the requester. We disagree. FOIA forms should not be a “gotcha” proposition requiring a lexicographer to discern who made the request. Brantley's request identified two parties as requesters: herself and A Better Way.Further down in the form, she clicked a box designating this as a request by an "individual" for personal use. Later comments on the same form indicated Brantley was requesting this on behalf of A Better Way, referring to "technical advisers" who would help disseminate info obtained "to our members."Even if the BPA wanted to get technical about Brantley's choice of "individual" on the online form, its own communications with Brantley made it clear the agency felt it was dealing with a group, rather than Brantley herself.[O]n February 18, 2015, the agency sent a letter addressed to “Cheryl Brantley[,] A Better Way for BPA,” stating that BPA had been in touch with [David] Bricklin [A Better Way's attorney], granting a fee waiver, noting the complexity of the request, and estimating completion by September 30, 2015. On September 28, 2015, BPA sent another letter, addressed the same way, advising of its need to submit certain records to third-party entities for review and thus “extending the target date for BPA’s response to your request to March 31, 2016.”The agency continued to communicate with A Better Way’s counsel. Significantly, on November 13, 2015, BPA sent an email to Bricklin with the subject line: “BPA-2015- 00597-F-Brantley (A Better Way for BPA) - DEIS for I-5 Corridor Reinforcement Project - 5 U.S.C. § 552(b)(4) determination letters.” Two days later, BPA sent another email to Bricklin with a similar subject line: “BPA-2015- 00597-F-Brantley (A Better Way for BPA) - DEIS for I-5 Corridor Reinforcement Project - communication with the requester’s counsel.” The appeals court makes short work of BPA's attempt to dodge litigation predicated on its own failure to produce responsive documents.Viewing the form as a whole, it is clear that the request was made on behalf of A Better Way, that the request was not for commercial purposes, that there was an obvious public interest related to BPA’s I-5 Corridor Reinforcement Project, and that the requester had “members,” hardly a characteristic of an individual requester. Any confusion in the electronic form was of BPA’s own making and could easily be fixed by including a place to check that the request is made “on behalf of” an organization or by adding “public interest organization” or “other” options under Type of Requester. The court goes on to note that BPA certainly knew the group requesting documents and acknowledged -- through multiple communications with A Better Way's counsel -- that A Better Way was the ultimate recipient of the sought documents. Pretending otherwise is just conveniently disingenuous.To the extent ambiguity exists with how Brantley filled out the form—and we do not think that any does—the follow-on correspondence between BPA and the requester affirms that A Better Way was the requester and that BPA treated A Better Way as the requester. For example, BPA addressed letters to “Cheryl Brantley[,] A Better Way for BPA,” twice placed “A Better Way” in the subject line of emails concerning the request, and regularly communicated with the organization’s lawyer. This treatment was unsurprising, as A Better Way and BPA were hardly strangers. During a six-month period from December 2009 to June 2010, for instance, the organization submitted ten FOIA requests to the agency. BPA cannot reverse course now and convince us that the organization with whom it was regularly corresponding and which it acknowledged as the requester should be out of court. Finally, the court says common sense must be used when dealing with FOIA requesters, who are usually citizens untrained in the art of obfuscatory bureaucracy. The court points out BPA, on multiple occasions, made it clear through communications with the group's counsel that it knew it was dealing with A Better Way, not Cheryl Brantley acting of her own accord. The case is sent back to the lower court to allow A Better Way to continue suing BPA for records it still hasn't turned over. And hopefully the BPA will act in good faith in the future when being sued for unresponsiveness. But probably not. After all, it's not the agency's money being wasted. That comes from US taxpayers -- an apparently bottomless source of revenue.
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posted at: 12:06am on 05-Jun-2018
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