Integral to the success of a business is its ability to protect its trademark. When another individual or business infringes upon a business's trademark, the infringed user can bring a claim under the Lanham Act, which codifies federal trademark law, in part to protect consumers from confusion as to the source of a product or service. An essential question is whether a trademark holder may, under the Lanham Act, bring a successful claim for trademark infringement against another for a fictional product.
The Seventh Circuit addressed this matter in Fortres Grand Corporation v. Warner Bros. Entertainment, in which the owner of computer software that removes private data from public computers filed suit against Warner Bros. for unauthorized use of its trademark, "Clean Slate," in the film The Dark Knight Rises. In the film, "the clean slate" describes a hacking program that enables Catwoman to rid databases of all evidence of her criminal past. The Seventh Circuit, applying the theory of reverse confusion, held that Fortres Grand did not sufficiently allege that Warner Bros. use of the phrase "clean slate" was likely to cause confusion among consumers as required under the Lanham Act. This Note contends that while the First Amendment protects artistic works from trademark infringement lawsuits, businesses must still protect their trademarks with claims based on the Lanham Act.
Sarah B. Virani,
Ka Bow! Seventh Circuit Knocks Down Trademark Claim,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol10/iss1/7