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.