Frivolous lawsuits like this have to be the bane of studios' existence. (Get it? Bane!) In "The Dark Knight Rises," Catwoman (Anne Hathaway) sought a computer program ("Clean Slate") that would wipe all traces of her sordid criminal past from the world's computers. The fictional program was mentioned twice, and viral marketing websites were set up for "Clean Slate" and the fictional company behind it, in order to promote the movie.
In real life, a company called Fortres Grand has a program called "Clean Slate." It resets a computer back to default settings whenever the computer is restarted -- the sort of program that would come in handy on public computers (libraries, hotels, schools) to wipe out user changes to the system, downloaded junk, and personal data.
Fortres Grand sued, claiming that the fictional product created "reverse confusion" with its trademark on "Clean Slate," harming its sales in the process.
No Possibility of Confusion
Is there any real possibility of consumers confusing a fictional piece of software mentioned in passing in a movie with a real-life product that does something completely different? Or more specifically, would consumers become confused about the source of the two things?
The Seventh Circuit didn't think so:
The problem here is that Fortres Grand wants to allege confusion regarding the source of a utilitarian desktop management software based solely on the use of a mark in a movie and two advertising websites. Warner Bros. [...] does not sell any movie merchandise similar to Fortres Grand's software which also bears the allegedly infringing mark. Fortres Grand mentions that Warner Bros. sells video games. Desktop management software and video game software may be similar enough to make confusion plausible, but Fortres Grand does not allege that the video games bear the "clean slate" mark. Nor does Fortres Grand allege that desktop management software is a commonly merchandised movie tie-in (as a video game might be).
In short: Fake things in movies aren't likely to be confused with real-life software. And under the "reverse confusion" argument pressed by Fortres Grand, they have to show that a consumer would think that the two goods -- a super-hero movie and real-life software -- are "goods related in the minds of consumers in the sense that a single producer is likely to put out both goods."
Judge Manion Has Some Fun
Judge Manion took a moment to show off his knowledge of Batlore:
Unlike other depictions of Batman, such as his appearance in the Justice League comics, there are no alien races from other planets, so wiping all traces of oneself from earth's databases is sufficient.
And to take a jab at Fortres Grand's website:
And anyone who arrives at Fortres Grand's website is very unlikely to imagine it is sponsored by Warner Bros. (assuming, safely, that Fortres Grand is not using Catwoman as a spokesperson for its program's efficacy).
But hey, if you are Fortres Grand, there is a silver lining: Despite your obvious disappointment in losing the case, you just got a ton of publicity by suing Warner Bros. Maybe that was the point all along.
- Fortres Grand v. Warner Bros. (FindLaw's Cases & Codes)
- Horse-Racing RICO Claim Involving Ex-Gov. Blagojevich Can Proceed (FindLaw's U.S. Seventh Circuit Blog)
- No Liability for Gun-Sale Website Armslist, but Should There Be? (FindLaw's U.S. Seventh Circuit Blog)