Decided yesterday in the 7th Circuit: Users can tell the difference between The Dark Knight Rises fake "clean slate" program — which can delete every reference to you on every computer, everywhere — and a real program which restores default settings to shared computers.
On August 14, the 7th Circuit Court of Appeals issued an opinion in Fortres Grand Corp. v. Warner Bros. Entertainment, Inc. Fortres Grand makes a product called "Clean Slate," which is a program that cleans out any user changes to shared computers. It's the kind of thing you'd see in school computer labs or hotel business centers, for example. They also, as most companies do, trademarked the name for that purpose.
As you may remember, part of the plot of The Dark Knight Rises involved Selina Kyle's attempts to get her hands on a "clean slate" program which would remove her criminal past from, well, everywhere. In universe, it's the product of the "Rykin Data Corporation." And as part of the marketing of the film, Warner Bros. set up two viral websites for Rykin and the "clean slate."
When Fortres Grand saw sales of "Clean Slate" go down after the The Dark Knight Rises, they filed suit claiming that sales had declined in part because of the use of "clean slate" in the movie. They claimed that potential buyers were misled into believing that their product was either illegal or fake by the movie. When the case first went to court, the district court found that Warner Bros. hadn't infringed and that, even if they had, they were protected by the First Amendment.
When Fortres Grand appealed, the 7th Circuit said they didn't even need to get to the free speech question. Fortres Grand only had one argument left standing: that of "reverse confusion" — that users think the real product is actually the fake one.
The court didn't find that persuasive. In fact, they were kind of snarky about it, writing. First, they describe the plot of the Dark Knight Rises with this:
Unlike other depictions of Batman, such as his appearance in the Justice League comics, there are no alien races from other planets, so wiping all traces of oneself from earth's databases is sufficient.
And then they use "Spoiler Alert" when describing the end of the film.
When discussing the merits, they took another shot at the case:
And anyone who arrives at Fortres Grand's website is very unlikely to imagine it is sponsored by Warner Bros. (assuming, safely, that Fortres Grand is not using Catwoman as a spokesperson for its program's efficacy).
And later the court takes the time to explain "clean slate" as a term and why that doesn't help out Fotres Grand:
Additionally, the mark "clean slate" is just one variation of a phrase (pinakis agraphos in Greek (often translated "unwritten tablet") or tabula rasa in Latin (often translated "blank slate" or "scraped tablet")) that traces its origins at least as far back as Aristotle and is often used to describe fresh starts or beginnings. While the use of the term may be suggestive for security software, its use descriptively (and suggestively) is quite broad, including in reference to giving convicted criminals fresh starts, to redesigning the internet, or, indeed, to a movie about an investigator with amnesia. Accordingly, Warner Bros.' descriptive use of the words "clean slate" in the movie's dialogue to describe a program that cleans a criminal's slate is unlikely to cause confusion.
(Note: the court cites Wikipedia for its source on tabula rasa, which is either awesome or awful, depending on your point of view.)
In the end, the court simply found it too implausible that potential customers would confuse the real product with a fictional one.
As Eugene Volokh points out at The Washington Post, there's every chance that Fortres Grand was really concerned about something else, but knew that argument would be even more vulnerable:
It may be that what Fortres Grand was really worried about is that Warner Bros.' use of the term "clean slate" would taint Fortres Grand's "Clean Slate" mark, and make it seem less appealing or less distinctive (though if it wanted distinctiveness, it should have used a less common term than "clean slate").
But this sort of "trademark dilution" claim requires that the mark be a "famous mark," something that's likely not true of Fortres Grand's mark. And this sort of trademark dilution claim is likely unavailable for uses of a trademark within a song, a movie and the like (see Mattel v. MCA Records (9th Cir. 2002), the "Barbie Girl" case). Even trademark confusion claims are often preempted either by statutory or First Amendment considerations when the trademark is used within such a work; but trademark dilution claims are even more clearly barred in such situations. Probably for these reasons, Fortres Grand litigated only a confusion claim, not a dilution claim, and the Seventh Circuit concluded that "it would not be appropriate to use a contorted and broadened combination of the 'reverse confusion' and 'related products' doctrines to extend dilution protection to non-famous marks which are explicitly excluded from such protection by statute."
So there: the Seventh Circuit believes that people can tell the difference between this real product and a fake one with the same name.