Fictional products don't violate trademark laws


The makers of Clean Slate, a drive-wiping program, sued Warner over a fictional product with the same name in The Dark Knight Rises; the judge quite sensibly told them that trademark protects you from unfair competition -- it doesn't let you own words.

Many media companies and creators are needlessly squeamish about this stuff. I use trademarks in colloquial, imaginary or fictional ways in my books and stories all the time, and I've had lots of colleagues ask me "how do you get away with it?" I "get away with it" because it's totally, unequivocally legal.

"The problem here is that Fortres Grand wants to allege confusion regarding the source of a utilitarian desktop management software based solely on the use of a mark in a movie and two advertising websites," writes the appellate judge. Warner Bros. "does not sell any movie merchandise similar to Fortres Grand's software which also bears the allegedly infringing mark. Fortres Grand mentions that Warner Bros. sells video games. Desktop management software and video game software may be similar enough to make confusion plausible, but Fortres Grand does not allege that the video games bear the "clean slate” mark. Nor does Fortres Grand allege that desktop management software is a commonly merchandised movie tie-in (as a video game might be)."

That's a nice way of essentially saying: "Why are you crazy people wasting everyone's time with this?" Just to be clear, Fortres Grand filed a lawsuit to combat a piece of entirely fictional software. Fictional. It doesn't exist. Like...at all. But Fortres Grand went to court against it. Bang up job guys.

Software Company Loses Trademark Case Against Batman Over Fictional Software [Timothy Geigner/Techdirt]

Notable Replies

  1. Warner Brothers should have just settled the case out of court by paying them off with a couple million fictional dollars. Heck, even a billion fictional dollars wouldn't make much of a dent in their annual operating budget.

  2. A check denominated in Bat Bucks, drawn on the Bank of Gotham. smiley

  3. Now I want to write a story where Pepsi and Coca-Cola are brands of motorcycles or something.

  4. Across the ditch, the brewery founded by Gavin Duff in Dunedin, NZ had to change it's name to McDuff's after threatened legal action which they couldn't afford to fight.

    Lion Nathan brewed a knock-off that got them sued in the 90s.

    And a Perth-based importer got a Cease-and-Desist when they imported unlicensed Duff from Germany. In a saner world, I'd liked to have seen the importer sat there with a Sharpie umlauting the U on each can, but sadly...

  5. I read a variant of that story as an old folk tale, in which a pauper flavors his bread with the smoke from someone's chimney. The end was identical: the judge (or king?) decides that the plaintiff is fairly compensated by the sound of the pauper's coin.

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