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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Oh my lordy Therapist Oniha of the winexbackspell@gmail.com I GOT Briggs BACK. Im so excited, It only took 2days for him to come home. bless divinity and bless god. i must be dreaming as i never thoughts he would be back to me after all this time. I am so much shock and just cant believe my eyes. thank you thank you thank you from the bottom of my heart,he always kiss and hug me now at all times,am so happy my heart is back to me with your help Therapist Oniha.

  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

ADVERTISEMENT