Dark Knight Dodges Trademark Claim

We know that Batman can handle the Joker, the Riddler, the Penguin Catwoman and all of the other villains with whom he has tangled over the years.  But can he handle the most fearsome adversary of all? I’m speaking of course about “The Plaintiff’s Lawyer.”  Based on a recent decision from an Indiana based federal court, even this opponent is no match for the Dark Knight.  Well, actually, Batman was not the one sued.  It was Warner Brothers, the producer of The Dark Knight Rises – the last of the recent trilogy of films starring Christian Bale as the Super Hero. 

A company called Fortres Grand Corporation filed the law suit, alleging that the film infringed on its trademark for a software product called “Clean Slate.”   According to the court, “[t]he Clean Slate software protects the security of computer networks by erasing all evidence of user activity so that subsequent users see no evidence of a previous user’s activity, meaning that each new user starts his or her computer activity with a ‘clean slate.’”

In the film, Selina Kyle (whose alter ego is Catwoman) apparently attempts to obtain a software program that will erase her criminal history from every computer data base in the world.  The movie software is developed by the fictional company “Rykin Data” and it is referred to four times as “clean slate.”  As part of the promotion for the film, Warner Brothers created two Web sites – rykindata.com and rykindata.tumblrcom.  The Web sites were made to look like what citizen of Gotham would find if they were looking for information about the fictional company.   Both Web sites used the term “clean slate” to describe the software. 

Fortres Grand brought its suit claiming that Warner Brothers violated the federal Lanham Act, which prohibits trademark infringement and unfair competition.  Warner Brothers filed a motion to dismiss.

Fortres argued that it was the victim of “reverse confusion” – that is, a small company who is the first to adopt a trademark gets overwhelmed when a larger, national player begins using it for its product.  Fortres cited instances involving Goodyear Tire, Quaker Oats and Maytag Appliances to make its point.  And that’s where Fortres encountered problem one.  Every one of those cases involved two products that actually existed.    As the court noted, “ Warner Bros. ‘clean slate’ software only exists in the fictional world of Gotham; it does not exist in reality.”  And unfortunately for Fortres,  the Indiana based court had no jurisdiction over a fictional world.  Simply put, there really can’t be confusion when one of the products is made up.  The consumer can’t mistakenly choose one over the other because there is only one.  Kind of obvious when you think about it. 

Problem two for Fortres was an item that actually exists in the real world – The First Amendment.  There’s no trademark violation when the name is used in an artistic work, at least when there is a minimal level of artistic relevance and no intent to make viewers think Fortres is in any way affiliate with the movie product.  The court felt Fortres lost on both counts and dismissed the case. 

Score one for the Caped Crusader.  I don’t think he even needed to reach into his utility belt to win this one.