Warner Bros. Entertainment Inc. recently won a trademark infringement lawsuit overs its use of a software company’s product name in its film The Dark Knight Rises. The case considered a relatively novel question: “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?” In this case, the district court said no.
Warner Bros. latest Batman film includes a handful of references to a fictional software program called “clean slate.” The plaintiff, Fortres Grand Corporation, manufactures and sells a real software program called “Clean Slate.” Fortres filed suit, alleging trademark infringement, federal unfair competition, and state unfair competition. It specifically argued that Warner Bros.’s use of the term “clean slate” constituted reverse trademark infringement, in which a junior user uses its size and market penetration to overwhelm the senior, but smaller, user.
As detailed in the opinion, “In order to state a claim for reverse confusion in this case, Fortres Grand has to make plausible allegations that Warner Bros. saturated the market with a product that the public has been ‘deceived into believing . . . emanates from, is connected to, or is sponsored by’ Fortres Grand.”
In this case, the court found that Fortres was unable to satisfy that burden. “There’s an obvious problem with Fortres Grand’s argument that this is a worst-case scenario of reverse confusion: Warner Bros. ‘clean slate’ software only exists in the fictional world of Gotham; it does not exist in reality,” the court noted.
“That distinction — between Warner Bros. real product (a movie) and its fictional product (software) — makes a world of difference because so much of the consumer confusion analysis depends on a comparison of the products at issue. In analyzing the potential for consumer confusion in this case, one must compare Fortres Grand’s “Clean Slate” software to Warner Bros.’ real product — The Dark Knight Rises,” the court further explained.
Under this analysis, the court found that there was no trademark infringement and dismissed the suit.
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