The latest installment of the Batman movie franchise was a big hit with fans. It told the story of Batman attempting to thwart Bane’s plot to send Gotham City into chaos. One of the subplots of the movie was Catwoman’s effort to obtain the “Clean Slate” software to help her erase her criminal history. It turns out that this fictional software written into the movie is not so fictional and the company behind the actual Clean Slate software believed that Warner Bros. infringed on their registered trademark by using the name in the movie. This prompted the company to file a trademark infringement lawsuit against Warner Bros. But as most who go up against Batman discover, he usually comes out on top.
Fortres Grand Corporation of Plymouth, Indiana is the owner of the Clean Slate trademark registration in the class covering Computer Software. Their software wipes a computer hard drive of any changes and restores it to its original condition, effectively wiping the slate clean, à la Catwoman’s desired software. Fortres Grand felt that Warner Bros’ use of the Clean Slate software in the Dark Knight Rises amounted to a variety of trademark infringement known as “reverse confusion”. Reverse confusion is a situation where the second user of a trademark is a larger, better-recognized group and their use of the first user’s trademark overwhelms the marketplace and damages the first user’s control and the goodwill associated with their registered trademark. Fortres trademark attorney made this argument as they filed their trademark infringement suit in Federal District Court in Indiana.
The judge evaluated whether a fictional use of a trademarked name in a movie amounted to actual trademark infringement. The case boiled down to the fact that the product Warner Bros. was selling was a movie and not computer software. Trademark conflicts nearly always come down to a likelihood of confusion analysis and the judge ruled that because the products of the two groups were so different, there was not likely to be any consumer confusion. He stated that the Clean Slate software in the movie existed only in the fictional world of Gotham and moviegoers were not likely to make any connection between the fictional software and the actual software.
This situation illustrates how trademark issues can arise in unexpected ways. The writers of the Dark Knight Rises may not have been thinking about trademark infringement when they called their fictional software Clean Slate. It pays to consult with experienced trademark attorneys who can advise you throughout the trademark process.