Warner Bros. recently won a dismissal of a trademark infringement suit brought by a software developer, Fortres Grand. Fortres Grand sued Warner Bros. for trademark infringement related to the use of a fictional software program called "clean slate" in the Batman film, The Dark Knight Rises. One of the plot lines in the film involves the character Selina Kyle and her attempt to procure a software program that will erase her criminal history from every computer database in the world. The software program is referred to four times in the film as "clean slate." Fortres Grand has marketed and sold a software called "Clean Slate," which protects the security of computer networks by erasing all evidence of user activity so that subsequent users see no evidence of a previous user's activity, meaning that each new user starts his or her computer activity with a "clean slate." In addition to the references in the film, two websites created to promote the filmincluded references to the fictional "clean slate" software. The court found Fortres Grand's argument for reverse trademark confusion (where a junior users uses its size and market to overwhelm the senior smaller user of a given trademark) unpersuasive. The court held that Warner Bros. "clean slate" software only exists in the fictional world of Gotham, and does not exist in reality. The court held that for a likelihood of confusion to exist, one must compare Fortres Grand's "Clean Slate" software to Warner Bros.' real product – The Dark Knight Rises. The court dismissed the complaint, finding that Warner Bros. was only using "clean slate" in a non-trademark way.
TIP: Although use of a fictional name in a movie may not constitute trademark infringement, fictional names for products and services used on advertising, such as the fictional name of a restaurant, should be cleared to ensure that the name is not already being used for that product or service as such uses may be subject to claims for false association not brought against Warner Bros. Additionally, although the above case was decided on other grounds, movies are entitled to additional protections under the First Amendment not generally available for advertising, which is considered to be commercial speech.