Software Company Loses Trademark Case Against Batman Over Fictional Software

from the holy-insanity,-batman! dept

We cover an awful lot of trademark insanity here at Techdirt and it's funny how often the misguided attacks, threats and lawsuits all seem to boil down to one party not understanding that there typically has to be some actual use in commerce, and a 'likelihood of confusion' for the law to apply. The misunderstandings covered usually involve the issue of a permission culture gone rogue, where some folks think they can own common words and/or phrases outright just by applying for a trademark on them. That isn't the case, of course, as trademark law was predominantly instituted to protect customers from being misled about the brands to which they are loyal or about which they have reasonable expectations.

Which makes it really sad to see the makers of Clean Slate software, used to essentially erase a computer's history, going after Warner Bros. because characters in The Dark Knight Rises identified software to erase a person's past as "clean slate" software. The company's suit was first dismissed because, you know, Warner Bros. doesn't actually make any software related to the claim.

"I think the fatal flaw in Fortres Grand's case has to do with correctly identifying the exact product that Warner Bros. has introduced to the market — a film, not a piece of software," wrote an Indiana federal judge in a May 2013 decision to dismiss the case.

Derp. But, apparently not willing to back down, Fortres Grand claimed the judge had relied too much on the fact that Warner Bros. isn't a competitor, and appealed the case to get the seven-factor test applied: similarity of the marks, the arena of commerce in which the marks are used, how carefully the marks were used to avoid confusion, the strength of the marks, how the marks will be perceived by customers and - oh, forget it, the damned software mentioned in the movie is freaking fictional. The 7th Circuit Appeals court... was not amused.

"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.

Filed Under: batman, clean slate, dark knight rises, fictional software, trademark
Companies: fortres grand, warner bros.

Did You Embed The Leaked Trailer For Dark Knight Rises On Your Blog? Under SOPA, You May Face Jail Time

from the the-dark-knight-rises,-indeed dept

You may have heard that, over the weekend, the trailer for The Dark Knight Rises was leaked (eventually leading to the official release of the trailer). As tends to happen with these kinds of things, they spread pretty quickly and the video (which, let us remember, is an advertisement for the movie) went pretty viral, and lots of people were sharing it. Now, if you're normal and clueful, this is a good thing. If you're lawyers for Warner Bros., you flip out and start sending out legal notices. Rob Sheridan received one of these notices after he included the embed of one of the videos of the trailer on his Tumblr site. He pointed out how ridiculous it is that he's getting hit for merely embedding a video, since he doesn't host it at all, and it seems like the takedown notice should have gone to the folks actually hosting the video instead. Unfortunately, it's become equally popular to go after those who link to infringing content, usually relying on 512(d)'s requirements that "information location tools" "disable access" to the material once notified. Thus, Warner Bros notifies Tumblr, and there goes the video. Personally, this seems silly. A simple link or embed should never be seen as infringing, especially when it's easy enough to go after those actually hosting the video.

That said, this whole incident should be a damn good reminder of why the felony streaming portions of SOPA in the House and S.978 (the felony streaming bill) in the Senate are pretty scary. Under those bills, Sheridan could have potentially faced many years in jail for his helping to promote this movie. Remember, the point of these bills is to make a willfully infringing "public performance" of such works a potential felony. It has to be for commercial advantage or private financial gain, but those can be broadly interpreted: if the purpose is to get people to your site and advertise yourself and your work.. that can be commercial advantage. It's willful, because everyone knew the video was leaked, and not legit at the time. But is it a public performance? Hell yes.

Courts have determined that links can be public performances, noting that:

the most logical interpretation of the Copyright Act is to hold that a public performance or display includes each step in the process by which a protected work wends its way to its audience.... Using the same approach, the court determines that the unauthorized “link” to the live webcasts that Davis provides on his website qualifies...

So forget about worrying about Justin Bieber going to jail... start worrying about merely embedding the trailer for The Dark Knight Rises.

Is this really the kind of law that America needs right now?

Filed Under: dark knight rises, dmca, embeds, infringement, rob sheridan, sopa, trailers
Companies: warner bros.