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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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