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IP/Entertainment Case Law Updates

Fortres Grand Corp. V. Warner Bros. Entertainment, Inc.

District court dismisses computer software company’s trademark claims against Warner Bros. based on references in Batman film The Dark Knight Rises to fictional “clean slate” software program, finding there could be no consumer confusion as to source of fictional product or of defendant’s film and that Warner Bros.’ use of “clean slate” was protected by First Amendment.

Plaintiff Fortres Grand makes computer security software named “Clean Slate” that erases all evidence of a user’s activity on a computer. Defendant Warner Bros. Entertainment Inc. produced the 2012 Batman film The Dark Knight Rises and related promotional websites, which make reference to a fictional computer program called “clean slate,” which is sought after in the film by the villainess Catwoman for its ability to erase digital records of her criminal past from every computer in the world. Fortres Grand sued Warner Bros. for federal trademark infringement and unfair competition under federal and Indiana state law.

The district court granted Warner Bros.’ motion to dismiss, finding that plaintiff’s allegations failed to establish any consumer confusion as to the source of its product – an essential element of plaintiff’s claims. Noting that trademark infringement protects only against mistaken purchasing decisions, not against confusion in general, the court found that any consumer confusion must be determined in the context of the parties’ actual products – plaintiff’s Clean Slate program and defendant’s film. In order to state a claim, Fortres Grand had to plausibly allege either (1) that consumers believe the fictional “clean slate” software is connected to Fortres Grand, or (2) that consumers believe The Dark Knight Rises is connected to Fortres Grand. As to the first possibility, the court found it impossible because the Batman “clean slate” software is fictional and cannot be purchased. Likewise, the court found the second scenario implausible because Fortres Grand is not in the motion picture business and no reasonable moviegoer would think it had a connection to The Dark Knight Rises.

The district court also found that, even if consumer confusion could exist, defendant’s use of “clean slate” was protected by the First Amendment. As the Second Circuit explained in Rogers v. Grimaldi, the Lanham Act is inapplicable to artistic works as long as the work’s use of a trademark is both “artistically relevant” to the work and not “explicitly misleading” as to the source or content of the work. The court found that defendant had satisfied both of the Rogers factors. The phrase “clean slate” was artistically relevant to The Dark Knight Rises because it formed part of the film’s plotline, and defendant’s use was not “explicitly misleading” because, as discussed above, no moviegoer would reasonably believe that Fortres Grand sponsored the defendant’s film. The court noted, however, that Fortres Grand did not assert a claim for trademark dilution, likely because its mark was not sufficiently “famous.” The court therefore did not address whether a fictional product or service could be the basis of a trademark dilution claim, which generally prevents the use of a famous trademark in a way that lessens its uniqueness.

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