How a Fictional Gotham Product Beat A Trademark Infringement Claim

It was actually pretty easy.

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The Dark Knight Rises was the second highest grossing film domestically in 2012. So it is unsurprising that outsiders attempted to cash in on the profits.  Notably, Fortres Grand, a software company, sued Warner Bros. over the trademarked term "Clean Slate."  Fortress Grand trademarked the term in 2001 for its software, which scrubs all evidence of prior users on public access computers.  Twelve years later, the Dark Knight Rises used (fictional and different) "clean slate" software as a major plot device.  Selina Kyle (later becoming Catwoman) attempted to obtain the "clean slate" program, which would erase her digital footprints from every computer in the world. 

Based on this, Fortres Grand sued Warner Bros. for trademark infringement.  Trademark infringement claims require "consumer confusion" over the source of a product.  And U.S. District Court Judge Philip Simon concluded that a fictional movie product cannot create the required confusion.  The court reasoned that there was no plausible claim that consumers would make mistaken purchase decisions about the tangible products: one product is a movie, and the other product is real computer software. 

The court also upheld the use of the term "clean slate" under the 1st Amendment.

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