In last summer’s blockbuster film, The Dark Knight Rises, Anne Hathaway plays Selina Kyle, who attempts to get her hands on a software program that will erase her criminal history from every computer database in the world. At one moment of the film, this character (who would later become Catwoman) tells Batman, “Wayne says you can get me the clean slate.”
In the film, the product is referred to as “clean slate” several times, and rather fascinatingly, Warner Bros. got sued over this by a company that actually markets and sells a computer security program called “Clean Slate.”
As Indiana federal judge Philip Simon puts the key question in setting up his ruling, “Is it trademark infringement if a fictional company or product in a movie or television drama bears the same name or brand as a real company or product?”
Judge Simon answers, No!
The judge notes that there hasn’t really been much case law on this subject ever before. “That’s unfortunate,” he remarks. “With the number of movies and television shows produced each year, one might expect that this issue would arise with some degree of frequency.”
The plaintiff in the case was Fortres Gran, which has been selling the Clean Slate software since 2000. As the name implies, the product can be used to erase the trail of history on one’s computer.
In the lawsuit, the company asserted “reverse confusion” among consumers insofar as the junior user of a trademark (allegedly Warner Bros.) using its size and market penetration to overwhelm the senior, but smaller, user (allegedly Fortres).
But as Judge Simon notes, “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.”
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The judge goes on.
“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 also accepts Warner Bros.’ point that there can be no confusion of the source of origin because of the business it is in. The studio argued, ““Plaintiff is not in the motion picture business, and it would be absurd to think that customers buy tickets to The Dark Knight Rises or purchase the DVD/Blu-ray because of a perceived association of the Film with Fortres Grand’s products.”
And oh yeah, Warner Bros. also wins on the First Amendment. Free speech reigns in Gotham. Here’s the ruling.
E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner
