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Real Lawsuit Over Fictional Product

Oct 11, 2013

Fortres Grand Corporation, the maker of a software product called “Clean Slate,” continues to press its trademark infringement claim against Warner Brothers. Fortres claims that Warner Brothers infringed its Clean Slate trademark in the film “The Dark Knight Rises.” In the film, Catwoman’s alter ego – Selina Kyle* --  uses a product called “Clean Slate” to erase her criminal history. The trial court dismissed Fortres’s claim finding it “implausible” that anyone would believe that the Fortres product had any connection to the film. The court also ruled that the First Amendment protected Warner Brother’s use of the words “Clean Slate.” 

Fortres, however, contends that its sales dropped after the release of the movie, and blames it on confusion created by the movie.  But here’s what I don’t get.   Even if the movie created confusion (meaning I guess that there is a sizable group of people who can’t distinguish between a film and real life) why would that decrease sales? The Clean Slate product “restores your computer to its original configuration discarding unwanted computer changes.” Which means there are two potential sources of confusion. First, would be the user who says “I would never use the same product that Catwoman uses.”  Of course, that means that Clean Slate lost the business only of truly crazy people. And that seems like a tough point to prove, and probably minimal losses.   

Second would be consumers who say “Wow! There’s a product I can buy to erase my criminal history? Awesome!”  Presumably, those confused consumers would look into buying Clean Slate, only to be disappointed by the fact that it doesn’t really perform that task. But if that’s the case, those people wouldn’t have bought the product anyway.   

So I guess you can add me to the list of people who are confused here. I just don’t see how Fortres has a case.

* Anne Hathaway played Selina/Catwoman in the Dark Knight Rises. With all due respect, for a man my age, Julie Newmar is and always will be the only Catwoman.   

 

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