The future survival of the trademarked term "Comic-Con" is at stake.

The trademark is facing its potential doom because of the legal fallout from the producers of the San Diego Comic-Con flexing their IP muscles. They sued a competing "Comic-Con" convention for using the unhyphenated form of their trademarked term "Comic-Con" without paying licensing fees. But their suit has raised questions about the legitimacy of the trademark—in particular whether the trademark has become too generic and, hence, a victim to its own pop-culture popularity.

The San Diego Comic Convention, the producers of the San Diego Comic-Con event, launched a legal battle against the producers of Salt Lake Comic Con. Both conventions are drool-worthy for fans of comic books and other areas of geek culture. The lawsuit claims the Salt Lake venue is capitalizing on the goodwill of the Comic-Con brand to mislead and confuse consumers into believing that the Utah venue is tied to the original Comic-Con venture.

But Dan Farr Productions, the Salt Lake Comic Con producer, countersued. Dan Farr Productions argued that it cannot be sued for trademark infringement because the trademark has become too generic. Words like teleprompter, thermos, hoover, aspirin, and videotape were once trademarked. They lost the status after their names became too generic and fell victim to what is known as "genericide." The Supreme Court is even considering whether the term "google" is too generic and unworthy of its trademark protection.

"After a careful review of the parties’ moving papers, the applicable law, and the evidence on the record, the Court finds that Defendants have satisfied their burden of demonstrating a genuine issue of material fact as to genericide," US District Judge Anthony Battaglia of San Diego wrote in a recent order in the case.

Genericide doom?

So how does a trademark become a victim of genericide? It does so when the majority of the relevant public appropriates the term as the name of a product or service.

The judge noted that, for example, "formerly trademarked terms such as 'aspirin,' 'escalator,' or 'cellophane' only identified the brand or producer during the period of its initial use." However, after the passage of time, "they were appropriated by the public and soon became the generic name of the product," the judge said. In this instance, the judge said there were 100 "comic cons" held in nearly every US state and that the media uses the term to describe "comic fans conventions in particular."

But the case doesn't end here.

That's because Judge Battaglia also thinks that the San Diego Comic Convention backers may be right—that Dan Farr Productions is infringing and that Comic-Con quite possibly has not become generic. That's what trials are for, to resolve legal disputes.

The judge suggested in his pretrial ruling (PDF) that Dan Farr Productions just might be unlawfully piggybacking on the Comic-Con namesake. He said consumers could reasonably believe that the "same source" is hosting both events.

"Here, both of the services at issue are indeed complementary of each other. The Court notes that Plaintiff’s convention is a three day fan event that showcases and celebrates comic art and comic books, and various other aspects of the popular arts such as graphic arts, science fiction, films, television, fantasy films, and literature," the judge noted. "Similarly, Defendants' event is also a three day fan convention featuring the best in movies, television shows, gaming, sci fi, fantasy, and comic books."

Game not over

The judge also noted that San Diego Comic Convention lawyers submitted to the court a consumer survey that found that more than 80 percent of consumers believed 'Comic-Con' to be a brand name and not a generic one.

A pretrial hearing on the issue is scheduled for Thursday. Trial is set for November 28 unless there's a delay or settlement.

Dan Farr Productions' attorney CJ Veverka told Ars that there have been "no settlement talks" following Battaglia's ruling. The trademark owner's lawyers did not immediately respond to Ars for comment.