Court finds fictional software brand in Dark Knight movie doesn’t infringe real brand

A US court has found the fictional “Clean Slate” software brand in the Dark Knight Rises movie doesn’t infringe the trademark of a real life business.

Fortres Grand markets a Clean Slate software program which is used “to protect public access computers by scouring the computer drive back to its original configuration upon reboot”.

The business owners were surprised to see Clean Slate software in the latest Batman movie which provides a right-to-be-forgotten which

“enables an individual to erase all traces of her criminal past from every database on earth so that she may lead a normal life.”

In the movie, Catwoman uses Clean Slate to overcome her shady past. 

Fortres Grand claimed the use of Clean Slate in the movie infringed its trademark.

It also claimed the sales of its real life product plummeted after the movie’s release.

Fortres Grand blamed reverse trademark confusion, which involves “potential customers mistakenly believing that its Clean Slate software is illicit or phony on account of Warner Bros’ use of the name.”

But the Seventh Circuit court found the fictional and real Clean Slate products were “quite dissimilar” and that general confusion “in the air is not actionable”.

“That consumers may mistakenly think Warner Bros is the source of Fortres Grand’s software—is still ‘too implausible to support costly litigation’.” the court found.

A spokesperson for Fortres Grand said the business was disappointed with the decision.

“It is well known that movies are filled with real product placements and have a serious obsession toward realism,” the spokesperson said in a statement.

“There is no reason for a person to think a technology is fictitious by reason of its appearance in a fictional movie.”  

The spokesperson also said confusion is a bigger problem for computer security software than for many other types of products because people are particularly sceptical when trying to identify legitimate security software.

“We relied on the value of our trademark to convey unambiguous confidence that Clean Slate is identified with a reliable legitimate developer of computer security software,” the spokesperson said.

Bill Ladas, special counsel at law firm King & Wood Mallesons, told SmartCompany if a similar situation occurred in Australia the use of Clean Slate would be unlikely to infringe a registered Australian trade mark.

“The use in the context of the film is unlikely to be seen as ‘trade mark use’, and so would fall at the first hurdle,” Ladas says. 

He says it is an “interesting” issue as to whether there is a law of “reverse confusion” in Australia.

Many years ago, Ian Thorpe was able to get his Thorpedo mark past an earlier registration for a Torpedoes mark.

“Thorpie’s reputation tended to reduce the risk of confusion in the judge’s view, so the reverse confusion argument didn’t work there”.

This is in contrast to a recent UK case in which The Glee Club, a comedy club in the UK with a registered trade mark, made out a trade mark infringement case against Fox in the UK that might see the very famous Glee franchise change its name in that country.

“Leaving aside whether Fortres Grand could make out a relevant reputation in Australia, the use by Warner Bros in the film appears unlikely to be a misrepresentation, so grounds based on passing off and the Australian Consumer Law are unlikely to fly,” Ladas says. 

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