Indiana-based company Fortres Grand Corp. has lost its trademark infringement battle against Warner Bros. over the fictional “Clean Slate” software featured in the latest Batman movie “The Dark Knight Rises.”
In the film, Gotham’s villains use “Clean Slate” software to erase their criminal histories. In real life, customers use Fortres’ Clean Slate software program to erase their computer histories.
Fortres argued “reverse confusion” among consumers in that Warner Bros., the junior user of the trademark, asserted its marketing power over Fortres, the senior but smaller user. Fortres claimed that sales of its Clean Slate software were slashed in half ever since the July 2012 release of the film.
U.S. District Judge Philip P. Simon rejected Fortres’ claims, noting that “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.”
Judge Simon went on to state, “I think the fatal flaw in Fortres Grand’s case has to do with correctly identifying the exact product that Warner Bros. has introduced to the market – a film, not a piece of software.”
While the judge noted a lack of case law on the subject of whether fictional trademarked products can infringe actual ones, this case is a reminder that in evaluating trademark infringement, key factors are the actual products and whether consumers will be confused into thinking they come from the same source.