ILNews

Security software maker loses trademark case against Warner Bros.

Back to TopCommentsE-mailPrintBookmark and Share

The Plymouth, Indiana-based security software maker that sued Warner Bros. after the movie “The Dark Knight Rises” referred to hacking software as “clean slate” lost its trademark infringement case before the 7th Circuit Court of Appeals. The company, which has a program called “Clean Slate,” claimed its sales dropped after the movie came out.

The issue on appeal is “reverse confusion” – the movie’s use of the words “clean slate” could cause consumers to be confused about the source of Fortres Grand’s software. The federal court in South Bend held that the company failed to state several claims, including a reverse confusion claim.

Fortres Grand’s security software “Clean Slate” allows user changes to a shared computer to be wiped away to keep the computers free of private data. In “The Dark Night Rises,” Selina Kyle, aka Catwoman, tried to get a software program referred to as “the clean slate” to erase all traces of her criminal past. Two websites were also created for marketing purposes purporting to be affiliated with the fictional Rykin Data Corp. that contained information of the clean slate hacking tool.

To succeed on its claim, Fortres Grand must plausibly allege that Warner Bros.’ use of the words “clean slate” in the movie has caused a likelihood that consumers will be confused into thinking Fortres Grand’s software is connected to the movie studio.

Judge Daniel Manion in Fortres Grand Corp. v. Warner Bros. Entertainment Inc., 13-2337, noted there is little authority on how to treat the “similarity of the products” factor when one of them is fictional when using a seven-factor test to determine likelihood of confusion.

The judges decided to compare Fotres Grand’s software with Warner Bros.’ movie.

“Fortres Grand has alleged no facts that would make it plausible that a super-hero movie and a desktop management software are ‘goods related in the minds of consumers in the sense that a single producer is likely to put out both goods,’” Manion wrote, citing McGraw-Edison v. Walt Disney Prods., 787 F.2d 1163, 1166 (7th Cir. 1986).

“While the use of (clean slate) may be suggestive for security software, its use descriptively (and suggestively) is quite broad, including in reference to giving convicted criminals fresh starts, to redesigning the internet, or, indeed, to a movie about an investigator with amnesia,” Manion wrote, referring to the 1994 movie “Clean Slate.” “Accordingly, Warner Bros.’ descriptive use of the words ‘clean slate’ in the movie’s dialogue to describe a program that cleans a criminal’s slate is unlikely to cause confusion.”

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

ADVERTISEMENT