Fortres Grand Corp. v. Warner Bros., Inc.

Trademark use in a fictional context does not constitute infringement.

Opinion (Simon): Warner Brothers ("Warner") produced the movie "The Dark Knight Rises" ("the movie"). Fortres Grand Corp. (Fortres) sells a software program named "Clean Slate." In the movie, a fictional corporation named Rykin Data wrote a software program named "Clean Slate." In Warner's advertising plan for the movie, Warner created a number of fictitious Rykin Data Tumblr websites which contained information and fictitious advertising for the fictitious "Clean Slate" program. Fortres brought suit alleging trademark infringement and unfair competition under both federal and state law. The Court noted that because Warner's "Clean Slate" program "only exists in the fictional world of Gotham," there is no real software product that consumers could confuse with Fortres' "Clean Slate." Therefore, there was no possibility that consumers could erroneously conclude that Warner's real product (the movie) emanated from or was connected with Fortres' products, Fortres' products emanated from or were connected with Warner's product, or that the fictitious Rykin website references to "Clean Slate" referred to anything other than the movie (because again, there is no real software product which confused consumers could attach to). The Court also concluded that, because Warner's use of "Clean Slate" was both "artistically relevant" to the work and not "explicitly misleading," the precedent of Rogers v. Grimaldi required a holding that Warner's use was constitutionally protected under the First Amendment. The Court therefore DISMISSED the case.