No Infringement in ‘Dark Knight’ Fictional Product

CHICAGO (CN) - Clean Slate, a fictional hacking program featured in "The Dark Knight Rises," does not infringe on a trademark for a similarly named real-world computer security program, the 7th Circuit ruled.

In the final installment of Christopher Nolan's Batman trilogy, Catwoman agrees to exchange her burglary skills for a software program described as "the clean slate," the key to erasing her criminal history from every computer database in the world.

Meanwhile outside the silver screen, Fortres Grand Corp.'s Clean Slate software program returns a computer to its original setup upon reboot, a useful feature for public computers at schools or libraries to keep the computers free of private data, user-installed programs or viruses.

Blaming consumer confusion between its program and the fictional "clean slate," Fortres Grand claimed that its software suffered a precipitous drop in sales after Warner Bros. Entertainment released "The Dark Knight Rises" in 2012.

Compounding the confusion, Batman fans created two websites purporting to be affiliated with the fictional developer of Catwoman's desired hacking tool, Rykin Data Corp., and included the image of a fictional patent.

A federal judge dismissed Fortres Grand's lawsuit against the studio, however, and the 7th Circuit affirmed Thursday.

"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," Judge Daniel Manion wrote for a three-judge panel.

Warner Bros. does not sell any Batman-themed merchandise similar to the Clean Slate software, the court found.

"Accordingly, the only products available to compare - Fortres Grand's software and Warner Bros.' movie - are quite dissimilar, even considering common merchandising practice. Fortres Grand has alleged no facts that would make it plausible that a super-hero movie and desktop management software are 'goods related in the minds of consumers in the sense that a single producer is likely to put out both goods,'" Manion wrote.

Fortres Grand also cited posts on blogs and Twitter that show people speculating if a clean-slate hacking program like the one in the movie could actually exist.

"At best Fortres Grand's argument is that consumers are mistakenly thinking that its software may be such a hacking tool (or an attempt at such a hacking tool), and not buying it," the 17-page opinion states (parentheses in original). "But this is not reverse confusion about origin. Whoever these unusually gullible hypothetical consumers are, Fortres Grand has not and could not plausibly allege that consumers are confused into thinking Fortres Grand is selling such a diabolical hacking tool licensed by Warner Bros." (Emphasis in original.)

Given the dissimilarity between the parties' goods, the similarity of the marks "Clean Slate" and "the clean slate" is not enough to uphold plaintiff's claim, the court ruled.

The panel did not reach whether the First Amendment protects using the words "clean slate" in the movie's dialogue.

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