Judge Philip Simon has ruled that Warner Bros.’s “The Dark Knight Rises” did not infringe on the trademarked name of a computer security program, Clean Slate. As a brief recap, Plaintiff Fortres Grand, an Indiana corporation, has sold security software under the mark CLEAN SLATE since 2000. In Defendant Warner Bros’ latest Batman movie, The Dark Knight Rises, Batman promises to obtain a software program called “Clean Slate” that will erase a person’s criminal history from every computer database in the world. This apparently caused hundreds of internet references for the fictional movie software, to which Plaintiff objected, prompting the lawsuit.
Nevertheless, Judge Simon has found no trademark infringement, focusing his opinion (full Opinion and Order below) largely on the doctrine of “reverse confusion.” I’ve provided a few excerpts from the Opinion below but you’ll want to read the full text for the Court’s complete reverse confusion analysis. The Court also rules that Warner Bros.’s use of the term “Clean Slate” is protected by the First Amendment.
There’s an obvious problem with Fortres Grand’s argument that this is a worst-case scenario of reverse confusion: Warner Bros. “clean slate” software only exists in the fictional world of Gotham; it does not exist in reality. This may seem to be a small point, but it has big ramifications for the consumer confusion analysis, which become apparent once you realize the argument that Fortres Grand has not made – and cannot make.
Here, there is simply no plausible claim that consumers will make “mistaken purchasing decisions” about the “tangible product” being sold in the marketplace: no one looking for Fortres Grand’s software is likely to mistakenly buy a ticket to The Dark Knight Rises.
Opinion and Order:
[View the original Complaint.]
Fortres Grand Corporation v. Warner Bros Entertainment Inc.
Court Case Number: 3:12-cv-00535-PPS-CAN
File Date: Wednesday, September 19, 2012
Plaintiff: Fortres Grand Corporation
Plaintiff Counsel: Christopher R. Putt of May Oberfell Lorber
Defendant: Warner Bros Entertainment Inc.
Cause: Trademark Infringement, Unfair Competition, Common Law Unfair Competition
Court: Northern District of Indiana
Judge: Chief Judge Philip P. Simon
Referred To: Magistrate Judge Christopher A. Nuechterlein