Software Company Loses Trademark Case Against Batman Over Fictional Software

from the holy-insanity,-batman! dept

We cover an awful lot of trademark insanity here at Techdirt and it’s funny how often the misguided attacks, threats and lawsuits all seem to boil down to one party not understanding that there typically has to be some actual use in commerce, and a ‘likelihood of confusion’ for the law to apply. The misunderstandings covered usually involve the issue of a permission culture gone rogue, where some folks think they can own common words and/or phrases outright just by applying for a trademark on them. That isn’t the case, of course, as trademark law was predominantly instituted to protect customers from being misled about the brands to which they are loyal or about which they have reasonable expectations.

Which makes it really sad to see the makers of Clean Slate software, used to essentially erase a computer’s history, going after Warner Bros. because characters in The Dark Knight Rises identified software to erase a person’s past as “clean slate” software. The company’s suit was first dismissed because, you know, Warner Bros. doesn’t actually make any software related to the claim.

“I think the fatal flaw in Fortres Grand’s case has to do with correctly identifying the exact product that Warner Bros. has introduced to the market — a film, not a piece of software,” wrote an Indiana federal judge in a May 2013 decision to dismiss the case.

Derp. But, apparently not willing to back down, Fortres Grand claimed the judge had relied too much on the fact that Warner Bros. isn’t a competitor, and appealed the case to get the seven-factor test applied: similarity of the marks, the arena of commerce in which the marks are used, how carefully the marks were used to avoid confusion, the strength of the marks, how the marks will be perceived by customers and – oh, forget it, the damned software mentioned in the movie is freaking fictional. The 7th Circuit Appeals court… was not amused.

“The problem here is that Fortres Grand wants to allege confusion regarding the source of a utilitarian desktop management software based solely on the use of a mark in a movie and two advertising websites,” writes the appellate judge. Warner Bros. “does not sell any movie merchandise similar to Fortres Grand’s software which also bears the allegedly infringing mark. Fortres Grand mentions that Warner Bros. sells video games. Desktop management software and video game software may be similar enough to make confusion plausible, but Fortres Grand does not allege that the video games bear the “clean slate” mark. Nor does Fortres Grand allege that desktop management software is a commonly merchandised movie tie-in (as a video game might be).”

That’s a nice way of essentially saying: “Why are you crazy people wasting everyone’s time with this?” Just to be clear, Fortres Grand filed a lawsuit to combat a piece of entirely fictional software. Fictional. It doesn’t exist. Like…at all. But Fortres Grand went to court against it. Bang up job guys.

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Companies: fortres grand, warner bros.

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Comments on “Software Company Loses Trademark Case Against Batman Over Fictional Software”

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TestPilotDummy says:

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Nick (profile) says:

You know, I see that there is sort of a problem here. It’s vague, but I can see how an owner of a software who has their product “named” (slightly) in a movie can have an issue. If people (like me) hear the name and then go out and find there IS a software program called Clean Slate, I might associate the capabilities in the movie with the real program.

Wouldn’t be the first time someone used a real-world program in a movie – *cough product placement *cough* – to show off the capability. After the movie, I might have an unrealistic expectation of the software’s capability.

But then, I graduated from kindergarten and didn’t believe they had anything to do with each other, so I never thought about it again.

PaulT (profile) says:

Re: Re:

“If people (like me) hear the name and then go out and find there IS a software program called Clean Slate, I might associate the capabilities in the movie with the real program.”

If they’re concerned about this kind of confusion, they should perhaps come up with an original name for their product. Not a commonly used colloquial phrase that’s likely to be reused by others inside and outside of their chosen industry.

Michael (profile) says:

Re: Re:

I might associate the capabilities in the movie with the real program

Sure, you (or someone equally trusting of the realism of a Batman movie) may be confused about the capabilities of a software package from this, but that’s not what trademark law protects consumers from. It protects consumers from purchasing a product they think is sold by one company when it is actually sold by another.

I can advertise that Coke cleans engine blocks – I just cannot advertise that my product is Coke.

Anonymous Coward says:

In 2014, with this particular case, I’m solidly behind Warner. But part of me can see a future where this kind of thing becomes a real issue. The internet has really helped to blur the marketplace and I think we’re getting to a point where seemingly separate industries are competing.

Nick starts with a good example so let’s take it a step further. Imagine a time where interactive movies are commonplace. While watching Dark Knight Rises, I can interrupt the movie and manipulate the environment, say for instance, I can use the fictional software in the movie and achieve either real or fictional results. If I’m a consumer and I see the interactive Blu-ray advertised as the movie and access to Clean Slate for $20, why would I spend $40 for the stand-alone version of Clean Slate? And at what point would I even realize I’m not using authentic Clean Slate software?

I know it sounds like a silly example, but that’s only because this is a tech-savvy community. There’s no way my mom would be able to differentiate what’s going on in that scenario. The Tech Dirt community supports the notion that copyright law was not written to handle current technology and I think it’s only fair to say the same thing about trademark law.

I think the moron in a hurry test is becoming invalid. People still use old versions of Internet Explorer because that’s what came on the computer they bought. We all have co-workers who believe they can only access their web-based email account from a specific computer. We only think these people are morons because of our elevated technical knowledge. But in reality, those people are the general public who fail these moron in a hurry tests. All of us could be dropped into an industry where we’d be considered a moron.

The Walking Dead has comic books, the TV show, video games, literature, apparel and toys that you can buy right this second. If a movie by that name was announced tomorrow, nearly all of us would think it’s a related entity and many people would go see it based on the name alone. And just look at Disney and Time Warner. I’d like someone to explain to me what trade they’re in because the only answer I can come up with is ‘all of them.’ Google started out as nothing but a search engine but now I can buy an umbrella, meat brander, dog toy and blanket with their brand on it. You’d have a hard time convincing me that they’re trademark only applies to technological endeavors.

And sometimes I think people don’t look at trademark issues from all angles. I see people say things like, “If you need a rolodex, you’d have to be stupid to accidentally buy this piece of software called Rolls of Decks.” That’s true, but we’re at a point in time where typing either one of those into Amazon’s search box could bring back both results and I don’t think you’d have to be a moron to order the wrong thing. Plus, I think focusing on the “If you need a rolodex” portion of the statement is unfair. I don’t need a rolodex, I need a way to catalog my contacts. In this instance a physical paper product is competing with a software product which is competing with a smartphone which is competing with a web service. It’s getting blurry.

John Fenderson (profile) says:

Re: Re:

“But part of me can see a future where this kind of thing becomes a real issue.”

I can’t. If your example comes to pass, then the “movie” is also “software”, so trademark protection would certainly apply as the product would be in the software space. (Trademark protects against the use of marks by others in the same product space, not against the use of marks in other product spaces.)

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