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Security software maker loses trademark case against Warner Bros.

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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.”

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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