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Litigating Reverse Confusion Infringement Actions

Recently, the Seventh Circuit Court of Appeals rejected as “implausible” a trademark infringement suit targeting the Warner Brothers’ latest Batman film, The Dark Knight Rises. The plaintiff in Fortres Grand v. Warner Bros Ent, Inc alleged that the film, in which the character Catwoman uses a fictional piece of software named Clean Slate to erase all traces of her criminal past, infringed its registered trademark for a real-world software program of the same name, which erases all evidence of user activity. The court held that the plaintiff could not base a trademark infringement claim on a theory of reverse confusion, because consumers were unlikely to believe that its software was affiliated with the Warner Brothers movie studio.

This article examines the difference between  forward and reverse confusion, and the manner in which courts analyze the likelihood of confusion factors differently where the theory of infringement is reverse confusion – especially the commercial and conceptual strength of the marks, the use of house marks, evidence of actual confusion and the defendant’s intent.