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Intellectual Property — trademark infringement — reverse confusion

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2014//

Intellectual Property — trademark infringement — reverse confusion

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2014//

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U.S. Court of Appeals for the 7th Circuit

Civil

Intellectual Property — trademark infringement — reverse confusion

The use of the words “clean slate” in a movie did not violate the trademark rights of the owner of a desktop management program called “Clean Slate.”

“In fact, the only factor to which Fortres Grand’s allegations lend any strength is the similarity of the marks — both marks are merely ‘clean slate’ or ‘the clean slate.’ But juxtaposed against the weakness of all the other factors, this similarity is not enough. Trademark law protects the source-denoting function of words used in conjunction with goods and services in the marketplace, not the words themselves. Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., 611 F.2d 296, 301 (9th Cir. 1979) (‘It is the source-denoting function which trademark laws protect, and nothing more.’). Assuming all Fortres Grand’s other allegations are true, its reverse confusion allegation—that consumers may mistakenly think Warner Bros. is the source of Fortres Grand’s software — is still ‘too implausible to support costly litigation.’ Eastland Music, 707 F.3d at 871. Accordingly, we need not — and do not — reach Warner Bros.’ argument that its descriptive use of the words ‘clean slate’ in the dialogue of its movie is shielded by the First Amendment. Eastland Music, 707 F.3d at 871 (‘It is unnecessary to consider possible constitutional defenses to trademark enforcement, … [when the] complaint fails at the threshold.’).”

Affirmed.

13-2337 Fortres Grand Corp. v. Warner Bros. Entertainment, Inc.

Appeal from the United States District Court for the Northern District of Indiana, Simon, J., Manion, J.

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