Fictional Trademark Infringement Claims

It should come as no surprise that “real-life” trademarks appear in films and television shows. However, movies and television programs also feature fictional product names and trademarks which do not exist in reality. What happens when a fictitious product name in a movie is the same as an actual trademark? The United States District Court for the Northern District of Indiana addressed this issue of first impression in Fortres Grand Corp. v. Warner Bros. Entertainment.

Fortres Grand filed an trademark infringement claim against Warner Brothers for using Fortres Grand’s federally registered trademark CLEAN SLATE in the movie The Dark Knight Rises. Fortres Grand uses CLEAN SLATE in connection with a computer program which erases all evidence of prior user activity. In The Dark Knight Rises, the fictional company Rykin Data created a program to erase a character’s criminal history from computer databases worldwide, and the program was descriptively referred to as providing a “clean slate.”

The court granted Warner Bros.’ motion to dismiss because Fortres Grand was unable to demonstrate a likelihood of confusion - unable to prove that consumers would be mistaken about purchasing decisions between “real” products. The problem with Fortres Grand’s case was that Warner Bros.’ software did not exist in reality; it only existed in the fictional world of Gotham. The court compared the movie, as opposed to the fictional software, with Fortres Grand’s actual software to determine the likelihood of any consumer confusion. The court reasoned that no consumer “reasonable or otherwise” would buy Fortres Grand’s products because of a perceived association with The Dark Knight Rises. Similarly, no reasonable consumer would buy tickets to The Dark Knight Rises because of a perceived association with Fortres Grand’s software. Therefore, the court concluded that Fortres Grand did not have a viable claim. The Fortres Grand decision was affirmed on appeal by the 7th Circuit Court of Appeals.

Written By:
Law Firm of Conway, Olejniczak & Jerry, S.C.