Holy Fiction, Batman! Imaginary Products Don’t Infringe on Real Ones
In The Dark Knight Rises, the third Batman film by Warner Brothers Entertainment, antihero Catwoman seeks to remove her criminal history from every database in the world so she can return to a normal life. Towards that end, she enters a criminal conspiracy in hopes of gaining access to “the clean slate,” a powerful database “hacking” program developed by the Rykin Data Corporation.The corporation? Purely fictional. The “clean slate” software is as well. But the name of this super-program matches a real-world product created by the Fortres Grand Corporation to erase user activity from public access computers and restore them to a . . . well, you guessed it.
Fortres Grand brought suit against Warner Brothers alleging trademark infringement, and on its appeal to the Seventh Circuit Court of Appeals relied upon the theory of “reverse confusion.” Fortres claimed that consumers would be confused by Warner Brothers’ use of the name “clean slate,” and would believe their real-world software was actually somehow linked to the film company. The Seventh Circuit Court of Appeals disagreed, writing “[w]hoever these unusually gullible hypothetical consumers are, Fortres Grand has not and could not plausibly allege that consumers are confused into thinking Fortres Grand is selling such a diabolical hacking tool licensed by Warner Bros.” Fortres Grand Corp. v. Warner Bros. Entm’t Inc., No. 13-2337, 2014 WL 3953972, at *5 (7th Cir. Aug. 14, 2014) (emphasis in original). Given the purely fictional nature of the software, the lack of any film tie-ins with the same name, and the fact that the term was used only descriptively in film dialogue, the court found in favor of Warner Brothers.
The court closes with a reminder about a fundamental aspect of trademark law: “[t]rademark law protects the source-denoting function of words used in conjunction with goods and services in the marketplace, not the words themselves.” Id.
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