Fortres’ software, called “Clean Slate,” erases user changes to public computers upon reboot, thus returning the computer to its original configuration, i.e., giving it a clean slate. Fortres’ complaint against Batman is that, in the weakest installment (IMHO) of Christopher Nolan’s otherwise-awesome Batman trilogy, The Dark Knight Rises, Catwoman seeks out an elusive (entirely fictional) hacking software, also called “Clean Slate,” in order to delete her criminal record from every database in the world.
Fortres sued Warner Brothers, the studio affiliated with the film, for infringement of the CLEAN SLATE trademark, arguing that consumers could be confused into believing that Fortres was somehow affiliated with the movie. Fortres also articulated a reverse confusion theory: that audiences would incorrectly believe that the real-world Clean Slate program “emanates from, is connected to, or is sponsored by” Warner Brothers. The District Court dismissed the complaint for failing to state a plausible claim.
Seventh Circuit Appeal
On appeal, Fortres pressed only its reverse confusion argument, and the Seventh Circuit co
nsidered this issue de novo. Judge Daniel Anthony Manion clearly had fun with this decision, as evidenced by his completely extraneous (and perhaps somewhat disappointed) footnote about the lack of aliens in The Dark Knight Rises, and his *Spoiler Alert* warning to protect Batman fans with some catching up to do.
More importantly, Judge Manion determined that the goods at issue in a consumer confusion analysis are those that are actually available on the real-world market. Fortres’ security software therefore should not be compared with the fictional software, which was not available in the real world, but with the Warner Brothers’ film, which was. Because the software and the film were not similar goods, and not related in a way that consumers would expect them to come from a single source, there was no likelihood of confusion.
Judge Manion also addressed what he interpreted as an unspoken dilution argument by Fortres – that consumers would view the Clean Slate software as an illicit hacking tool because of the connection to the criminal underworld in The Dark Knight Rises. Trademark dilution, however, which does not require a likelihood of confusion, is a claim available to only famous marks. The Court held that, even if some “unusually gullible hypothetical consumers” would draw a connection, CLEAN SLATE is not a famous mark, so Fortres was unable to plead any plausible claim against Warner Brothers.
Fortres, perhaps unsurprisingly, thought that Judge Manion got it wrong. By the time Fortres filed its petition for certiorari with the Supreme Court, it had disowned any argument that a consumer would confuse a movie and a security software program. Instead, Fortres focused its argument on the existence of Batman-themed websites such as rykindata.tumblr.com/cleanslate. These real websites, set in the film’s fictional universe, present the fictional Clean Slate program, by fictional company Rykin Data Corporation, as though it actually exists, thus — so the argument goes — creating a likelihood of confusion. (Warner Brothers denies any connection to such websites, but this dispute of fact was not at issue on a motion to dismiss.)
Judge Manion had been unimpressed by this line of argument, because he found that the websites were at most advertising for the real good at issue: the film. The Supreme Court may have agreed (or, as fellow representatives of justice clad in flowing black garments, may have felt an unspoken camaraderie with the Caped Crusader) because this month, they denied the petition for certiorari.