Fortres Grand Corporation v. Warner Brothers Entertainment

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2337
FORTRES GRAND CORPORATION,
Plaintiff-Appellant,
v.
WARNER BROS. ENTERTAINMENT INC.,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 12-cv-00535 — Philip P. Simon, Chief Judge.
ARGUED DECEMBER 10, 2013 — DECIDED AUGUST 14, 2014
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. Fortres Grand Corporation develops
and sells a desktop management program called “Clean Slate.”
When Warner Bros. Entertainment used the words “the clean
slate” to describe a hacking program in the movie, The Dark
Knight Rises, Fortres Grand noticed a precipitous drop in sales
of its software. Believing Warner Bros.’ use of the words “clean
slate” infringed its trademark and caused the decrease in sales,
Fortres Grand brought this suit. Fortres Grand alleged that
2 No. 13-2337
Warner Bros.’ use of the words “clean slate” could cause
consumers to be confused about the source of Warner Bros.’
movie (“traditional confusion”) and to be confused about the
source of Fortres Grand’s software (“reverse confusion”). The
district court held that Fortres Grand failed to state a claim
under either theory, and that Warner Bros.’ use of the words
“clean slate” was protected by the First Amendment. Fortres
Grand appeals, arguing only its reverse confusion theory, and
we affirm without reaching the constitutional question.
I. Factual Background
Fortres Grand develops and sells a security software
program known as “Clean Slate.” It also holds a federally
registered trademark for use of that name to identify the source
of “[c]omputer software used to protect public access comput-
ers by scouring the computer drive back to its original configu-
ration upon reboot.” Trademark Reg. No. 2,514,853. As the
description in the trademark registrations suggests, the
program wipes away any user changes to a shared computer
(wiping the slate clean, so to speak). It is the kind of program
that might be used at schools, libraries, hotels, etc., to keep
public computers functioning properly and free of private
data. Because a desktop management program is security
software, its single most important characteristic is its trust-
worthiness. Fortres Grand had been able to establish its Clean
Slate software in the marketplace as a trustworthy program.
In July 2012, Warner Bros. released The Dark Knight Rises,
the third and final installment in a film depiction of the comic-
book hero Batman. The film was an immense commercial
success. In the film, Batman and his allies battle a shadowy
No. 13-2337 3
organization hell-bent on the destruction of Gotham City,
Batman’s home town. One of Batman’s allies, the antihero
Selina Kyle (Catwoman), begins the story as an unwitting
pawn of the shadowy organization. In exchange for her unique
services as a cat burglar, the organization agrees to give her a
software program known as “the clean slate,” which was
developed by “Rykin Data Corporation” and enables an
individual to erase all traces of her criminal past from every
database on earth so that she may lead a normal life (that is, to
wipe her slate clean).1 But after Kyle completes her task, she is
betrayed and told that the program, “the clean slate,” does not
exist. When she becomes aware of the extent of the shadowy
organization’s plans—to detonate a nuclear device in Gotham
City—she aids Batman in neutralizing the threat. Near the
climax of the movie, the destruction of the city appears
imminent. But Batman assembles a team, including Selina Kyle,
to try to save the city. Batman’s alter ego—the billionaire,
industrialist, and philanthropist Bruce Wayne—had secretly
acquired and hid the clean slate program. Batman gives “the
clean slate” program to Selina Kyle in exchange for her aid.
After rendering the agreed aid and obtaining the means to a
clean slate and escape, she nonetheless stays to continue
1
Unlike other depictions of Batman, such as his appearance in the Justice
League comics, there are no alien races from other planets, so wiping all
traces of oneself from earth’s databases is sufficient. See, e.g., WIKIPEDIA.ORG,
List of locations of the DC Universe, Planetary Systems, http://en.wikipedia.org/
wiki/List_of_locations_of_the_DC_Universe#Planetary_systems (listing the
various planets in the DC Comics universe, in which the Justice League
stories take place). All websites cited in this opinion were last visited July
31, 2014, and copies are saved with the court.
4 No. 13-2337
combating the nuclear threat. (*Spoiler Alert*) Batman and his
allies are able to save Gotham City and, in the closing scene of
the movie, we see that Selina Kyle has apparently used the
program to erase her criminal past and that she is leading a
“normal” life with Bruce Wayne (to the extent dining at a
Florentine café with the billionaire alter ego of the Caped
Crusader is normal).
Additionally, as part of the marketing of the movie, two
websites were created purporting to be affiliated with the
fictional Rykin Data Corporation.2 The websites contained
descriptions of the clean slate hacking tool and its operation
and an image of a fictional patent. Nothing was available for
purchase or download from the websites—they were purely an
informational extension of the fictional Gotham City universe.3
2
Warner Bros. informs us in its response brief that it did not create these
sites, but rather, that they were created by fans of the movie. We have no
reason to doubt that assertion (nor does Fortres Grand dispute it in its reply
brief), but because we are reviewing this issue on the appeal of an order
dismissing the complaint for failure to state a claim, we assume that Fortres
Grand’s allegation that the websites were created by Warner Bros. is true.
3
Fortres Grand initially argued that it was error to consider Warner Bros.’
printouts of the websites which Fortres Grand had referenced in its
complaint. But Warner Bros. responded that Fortres Grand had not
disputed the printouts’ authenticity (i.e., that they are “concededly
authentic”). Instead of doing so in its reply, Fortres Grand made arguments
from the websites’ content consistent with what Warner Bros.’ printouts
depicted. Accordingly, though we are skeptical of considering the content
of websites allegedly within the defendant’s control, Fortres Grand has
waived this issue. Long-Gang Lin v. Holder, 630 F.3d 536, 543 (7th Cir. 2010)
(“The failure to adequately develop and support [an argument] results in
(continued...)
No. 13-2337 5
After the film was released, Fortres Grand noticed a
significant decline in sales of its Clean Slate software. It
believes that this decline in sales was due to potential custom-
ers mistakenly believing that its Clean Slate software is illicit or
phony on account of Warner Bros.’ use of the name “the clean
slate” in The Dark Knight Rises. Accordingly, Fortres Grand
filed suit alleging that Warner Bros.’ use of the words “clean
slate” in reference to the software in its movie infringed Fortres
Grand’s trademark in violation of Lanham Act §§ 32, 43
(codified at 15 U.S.C. §§ 1114, 1125 respectively), and Indiana
unfair competition law. But, on Warner Bros.’ motion, the
district court dismissed Fortres Grand’s complaint under Rule
12(b)(6) for failing to state a claim. The district court concluded
that Fortres Grand had not alleged a plausible theory of
consumer confusion, upon which all of its claims depend, and
that Warner Bros.’ use of the words “the clean slate” was
protected by the First Amendment. Fortres Grand appeals.
II. Discussion
“We review the granting of a motion to dismiss de novo
and affirm if the complaint does not include facts that state a
plausible claim for relief.” Active Disposal, Inc. v. City of Darien,
635 F.3d 883, 886 (7th Cir. 2011) (citing Justice v. Town of Cicero,
577 F.3d 768, 771 (7th Cir. 2009)). “Our analysis rests on the
complaint, and we construe it in the light most favorable to the
plaintiffs, accepting as true all well-pleaded facts alleged and
drawing all permissible inferences in their favor.” Id. Allega-
(...continued)
waiver.”).
6 No. 13-2337
tions of consumer confusion in a trademark suit, just like any
other allegations in any other suit, cannot save a claim if they
are implausible. See Eastland Music Grp., LLC v. Lionsgate
Entm't, Inc., 707 F.3d 869, 871 (7th Cir. 2013) (citing Ashcroft v.
Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007)), cert. denied, 134 S. Ct. 204 (2013)).
All three of Fortres Grand’s claims depend on plausibly
alleging that Warner Bros.’ use of the words “clean slate” is
“likely to cause confusion.” Lanham Act § 32, 15 U.S.C.
§ 1114(1)(a) (infringement of registered trademarks); Lanham
Act § 43, 15 U.S.C. § 1125(a)(1) (infringement of unregistered
trademarks and other unfair competition); see Dwyer Instru-
ments, Inc. v. Sensocon, Inc., 873 F. Supp. 2d 1015, 1040 (N.D.
Ind. 2012) (“The analysis under the Lanham Act for unfair
competition also applies to claims for unfair competition under
Indiana common law.”).4 But general confusion “in the air” is
not actionable. Rather, only confusion about “origin, sponsor-
ship, or approval of … goods” supports a trademark claim. 15
4
Fortres Grand argues generally that Indiana unfair competition law is
“broader” and is a “general category into which a number of new torts may
be placed,” but fails to explain how that breadth would change the analysis
in this case, or what new tort it wants us to adopt for Indiana. Accordingly,
the argument that there is any difference is waived. Long-Gang Lin v. Holder,
630 F.3d 536, 543 (7th Cir. 2010) (“The failure to adequately develop and
support [an argument] results in waiver.”). Indeed, all relevant authority
we have found analyzes Indiana unfair competition claims based on
trademarks the same as Lanham Act trademark claims, so we analyze all the
claims together. See Dwyer Instruments, 873 F. Supp. 2d at 1040; see also
Vision Ctr. Nw., Inc. v. Vision Value, LLC, 673 F. Supp. 2d 679, 683 and n.2
(N.D. Ind. 2009) (laying out additional authority for this proposition).
No. 13-2337 7
U.S.C. § 1125; see also 4 McCarthy on Trademarks and Unfair
Competition § 24:6 (4th ed.) (describing the various semantic
formulations of the actionable objects of confusion, which are
the same under §§ 1114 and 1125); Custom Vehicles, Inc. v. Forest
River, Inc., 476 F.3d 481, 484 (7th Cir. 2007) (using the phrase
“emanates from, is connected to, or is sponsored by” partially
drawn from “affiliation, connection, or association” in § 1125
to communicate the same concept). Further, “goods” means
“the tangible product sold in the marketplace.’” Eastland Music,
707 F.3d 869, 872 (quoting Dastar Corp. v. Twentieth Century Fox
Film Corp., 539 U.S. 23, 31 (2003)). For convenience, we gener-
ally use the word “origin” as shorthand for “origin, sponsor-
ship, or approval.”
In a traditional trademark action, the confusion of origin is
mistaking a junior user’s product as originating from a senior
user. (“Senior user” meaning the first, and protected, user of
the mark and “junior” user meaning a later, and potentially
infringing, user of the mark.) Initially, Fortres Grand argued
that consumers could be confused into thinking that the movie
was sponsored by Fortres Grand by virtue of the appearance
of “clean slate” software. It has since abandoned those argu-
ments on appeal.
Instead, Fortres Grand argues that it has stated a claim via
“reverse confusion,” a theory that we have recognized. See
Peaceable Planet, Inc. v. Ty, Inc., 362 F.3d 986, 987 (7th Cir. 2004)
(citing Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d
947, 957–58 (7th Cir. 1992)); see also 4 McCarthy §§ 23:10, 25:6
n.1 (distinguishing between “reverse passing off” and “reverse
confusion”). In reverse confusion, the senior user’s products are
8 No. 13-2337
mistaken as originating from (or being affiliated with or
sponsored by) the junior user. This situation often occurs when
the junior user is a well-known brand which can quickly
swamp the marketplace and overwhelm a small senior user.
Quaker Oats Co., 978 F.2d at 950 (junior user was the manufac-
turer of Gatorade); see also 4 McCarthy § 23:10 (discussing
examples of reverse confusion cases against junior users like
Goodyear, Maytag, and Mattel). The harm from this kind of
confusion is that “the senior user loses the value of the
trademark—its product identity, corporate identity, control
over its goodwill and reputation, and ability to move into new
markets.” Quaker Oats, 978 F.2d 947, 957. To state a claim for
infringement based on reverse confusion, Fortres Grand must
plausibly allege that Warner Bros.’ use of the words “clean
slate” in its movie to describe an elusive hacking program that
can eliminate information from any and every database on
earth has caused a likelihood that consumers will be confused
into thinking that Fortres Grand’s Clean Slate software
“emanates from, is connected to, or is sponsored by [Warner
Bros.].”5 Custom Vehicles, 476 F.3d at 484 (citing Lucent Info.
5
Fortres Grand is correct that the district court erroneously inverted this
test while applying it (essentially applying the traditional test), requiring
that Fortres Grand plausibly allege that consumers have been confused into
thinking that the fictional software or the movie “‘emanates from, is
connected to, or is sponsored by’ Fortres Grand.” Fortres Grand Corp. v.
Warner Bros. Entm't Inc., 947 F. Supp. 2d 922, 929–30 (N.D. Ind. 2013)
(incorrectly inserting Fortres Grand into the test as the junior user where
Warner Bros. ought to have been inserted).
No. 13-2337 9
Mgmt., Inc. v. Lucent Techs., Inc., 186 F.3d 311, 316 (3d Cir.
1999).6
In considering the plausibility of such an allegation of
confusion we look to the applicable test for likelihood of
confusion. In this circuit, we employ a seven-factor test:
[1] the degree of similarity between the marks in
appearance and suggestion; [2] the similarity of the
products for which the name is used; [3] the area
and manner of concurrent use; [4] the degree of care
likely to be exercised by consumers; [5] the strength
[or “distinctiveness”] of the complainant’s mark; [6]
actual confusion; and [7] an intent on the part of the
alleged infringer to palm off his products as those of
another.
McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163, 1167–68
(7th Cir. 1986) (quoting Helene Curtis Indus., Inc. v. Church &
Dwight Co., Inc., 560 F.2d 1325, 1330 (7th Cir. 1977)).7 The
district court relied heavily on the “similarity of the products”
factor in its conclusion that Fortres Grand failed to state a
claim, concluding that Fortres Grand’s software and Warner
6
The list “emanates from, is connected to, or is sponsored by” is merely
a rephrasing of “origin, sponsorship, or approval” and “affiliation,
connection, or association” in § 1125, which we also apply in the § 1114
context. See, e.g., McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163,
1166 (7th Cir. 1986) (“a likelihood of confusion as to the origin of its
products [is] required to prove a violation of 15 U.S.C. §§ 1114, 1125”).
7
However, the seventh factor is irrelevant in a reverse confusion analysis
because the junior user is not trying to profit from the senior user’s brand.
Quaker Oats, 978 F.2d at 961.
10 No. 13-2337
Bros.’ movie were so dissimilar that confusion was implausible.
See Fortres Grand, 947 F. Supp. 2d at 928–29. Fortres Grand
argues on appeal that it was error for the district court to rely
so heavily on one factor, and that the proper product to
compare to its software is the fictional software in the movie
made by the fictional Rykin Data Corporation. There is little
authority on how to treat the “similarity of the products” factor
when one of them is fictional, see Fortres Grand, 947 F. Supp. 2d
at 924 (citing 6 McCarthy § 31:149), but what few cases have
confronted the issue have considered the likelihood of confu-
sion between the senior user’s product and the junior user’s
creative work—not any fictional product therein. See Davis v.
Walt Disney Co., 430 F.3d 901, 904 (8th Cir. 2005) (comparing
senior user’s products and services with Disney’s movie—not
the fictional product in the movie bearing a mark similar to the
senior user’s); Ocean Bio-Chem, Inc. v. Turner Network Television,
Inc., 741 F. Supp. 1546, 1557 (S.D. Fla. 1990) (similarly compar-
ing the senior user’s product to Turner’s movie rather than the
fictional product contained therein). This approach makes
sense in light of the Supreme Court’s emphasis on confusion
about the origin, sponsorship, or approval of “the tangible
product sold in the marketplace.” Dastar, 539 U.S. at 31. In fact,
in forward confusion cases where the allegedly infringing use
is in a junior user’s movie, the Supreme Court’s interpretation
of “goods” in § 1125 likely compels lower courts to look to the
movie, since it is the junior user’s only tangible product in the
marketplace about which consumers could be confused. In
reverse confusion based on a junior user’s movie, however, it
is not so cut-and-dried. Because the confusion is about the
origin, sponsorship, or approval of the senior user’s product,
No. 13-2337 11
which is tangible, there is no clear command that we compare
that product (the software) to Warner Bros.’ tangible product
(its movie) when considering the factor.8 Regardless, because
the infringing act is the junior user’s use of the mark “in
connection with any goods,” 15 U.S.C. § 1125, we think the
word “goods” must mean the same thing there (tangible
goods) that it means in the later clause, and so we conclude
that Warner Bros.’ movie—its tangible good—is the correct
comparator product, even while using the product-similarity
factor to analyze reverse confusion.9 For the purposes of Rule
12(b)(6), we also consider the Rykin Data websites as advertise-
ments for its tangible good, the movie.
But that does not end the product comparison question.
While movies and desktop management software are dissimi-
lar products, “[t]he fact that the products at issue may be ‘very
different’ is not dispositive of the issue of the similarity of the
products in determining the existence of a likelihood of
confusion between products. The question is ‘whether the
products are the kind the public attributes to a single source.’”
McGraw-Edison, 787 F.2d at 1169 (quoting E. Remy Martin & Co.,
S.A. v. Shaw-Ross Int’l Imports, Inc., 756 F.2d 1525, 1530 (11th
8
We assume the Supreme Court would view a downloaded file from a
website as the tangible product sold by Fortres Grand in this context, even
though it is not literally tangible. We think, in general, the relevant question
of source in the context of a download is which entity is responsible for the
file hosted on the server which is downloaded by the consumer.
9
The language is similarly tied to goods in 15 U.S.C. § 1114 (making
actionable the confusing use of a mark “in connection with the sale, offering
for sale, distribution, or advertising of any goods”).
12 No. 13-2337
Cir. 1985)). Infringement can occur if the trademarks are used
on “goods related in the minds of consumers in the sense that
a single producer is likely to put out both goods.” Id.
In McGraw-Edison, we held there was sufficient evidence to
raise a question of fact about “whether the products are the
kind the public attributes to a single source” where the
evidence showed that McGraw-Edison (the senior user) made
electrical fuses bearing the “TRON” mark and that Disney (the
allegedly infringing junior user) had made videogames, toys,
and had licensed telephones bearing the “TRON” mark (styled
after its TRON movie). Id. In McGraw-Edison, the infringing
mark was used on Disney’s merchandise for the TRON movie.
We held that “utilitarian electrical products” could be confused
as originating from the same source as “entertainment-based”
products powered by electricity when both are labeled
“TRON.” Id. It is also plausible that entertainment-based
products could be confused as being affiliated with (by means
of licensing) the same source as a movie.
The problem here is that Fortres Grand wants to allege
confusion regarding the source of a utilitarian desktop man-
agement software based solely on the use of a mark in a movie
and two advertising websites. Warner Bros., unlike Disney,
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-
No. 13-2337 13
in (as a video game might be). Accordingly, the only products
available to compare—Fortres Grand’s software and Warner
Bros.’ movie—are quite dissimilar, even considering common
merchandising practice. Fortres Grand has alleged no facts that
would make it plausible that a super-hero movie and desktop
management software are “goods related in the minds of
consumers in the sense that a single producer is likely to put
out both goods.”
Fortres Grand emphasizes that we have clearly stated that
courts should not rely on the weakness of a single factor to
dispose of a trademark infringement claim. AHP Subsidiary
Holding Co. v. Stuart Hale Co., 1 F.3d 611, 616 (7th Cir. 1993)
(“None of the seven confusion factors alone is dispositive in a
likelihood of confusion analysis.”). But its allegation of reverse
confusion is just as implausible in light of the other factors.
Both the movie and Fortres Grand’s software are available on
the internet, but the movie was shown first and primarily in
theaters and Fortres Grand’s software is only available at its
website, not at other places on the internet. And anyone who
arrives at Fortres Grand’s website is very unlikely to imagine
it is sponsored by Warner Bros. (assuming, safely, that Fortres
Grand is not using Catwoman as a spokesperson for its
program’s efficacy). See FORTRESGRAND.COM, Clean Slate 7,
http://www.fortresgrand.com/products/cls/cls.htm. And the
movie websites, while on the internet, sell no products and are
clearly tied to the fictional universe of Batman. Further,
Warner Bros.’ use of the mark is not a traditional use in the
marketplace, but in the dialogue of its movie and in extensions
of its fictional universe, so the “the area and manner of
concurrent use” also makes confusion unlikely. Fortres Grand
14 No. 13-2337
also asserts that consumers of “security software,” similar to
what it sells, are discerning and “skeptical,” which is indicative
of a “degree of care likely to be exercised by consumers”
making confusion unlikely. Additionally, the mark “clean
slate” is just one variation of a phrase (pinakis agraphos in
Greek (often translated “unwritten tablet”) or tabula rasa in
Latin (often translated “blank slate” or “scraped tablet”)) that
traces its origins at least as far back as Aristotle and is often
used to describe fresh starts or beginnings.10 While the use of
the term may be suggestive for security software, its use
descriptively (and suggestively) is quite broad, including in
reference to giving convicted criminals fresh starts, to re-
designing the internet, or, indeed, to a movie about an investi-
gator with amnesia.11 Accordingly, Warner Bros.’ descriptive
use of the words “clean slate” in the movie’s dialogue to
describe a program that cleans a criminal’s slate is unlikely to
cause confusion. See Quaker Oats Co., 978 F.2d at 959 (7th Cir.
1992) (“In a reverse confusion case, then, it may make more
10
See, e.g., WIKIPEDIA.ORG, Tabula Rasa, http://en.wikipedia.org/wiki/
Tabula_rasa.
11
See, e.g., CLEANSLATE CHICAGO, About, http://www.cleanslatechicago.
org/cs/about (community revitalization program that serves the additional
purpose of providing job training to individuals, including those with
criminal convictions); THE CARA PROGRAM, Service Delivery Model, http://
www.thecaraprogram.org/sites/default/files/uploads/FY13%20Service%20
Delivery%20Model.pdf (describing the staffing of the Cleanslate Chicago
program); STANFORD UNIVERSITY, Clean Slate Program, http://cleanslate.
stanford.edu/; INTERNATIONAL MOVIE DATABASE, Clean Slate (1994), http://
www.imdb.com/title/tt0109443/.
No. 13-2337 15
sense to consider the strength of the mark in terms of its
association with the junior user's goods.” (emphasis added)).
Finally, Fortres Grand speculates that there must have been
actual confusion because of “internet chatter” and “web pages,
tweets, and blog posts in which potential consumers question
whether the CLEAN SLATE program, as it exists in The Dark
Knight Rises, is real and could potentially work.”12 Am. Compl.
at 5, ¶ 24. But this is not an allegation of actual confusion. This
is an assertion that consumers are speculating that there really
could be a hacking tool that allows a user to erase information
about herself from every database on earth. Id. At best Fortres
Grand’s argument is that consumers are mistakenly thinking
that its software may be such a hacking tool (or an attempt at
such a hacking tool), and not buying it. But this is not reverse
confusion about origin. Whoever these unusually gullible
hypothetical consumers are, Fortres Grand has not and could
not plausibly allege that consumers are confused into thinking
12
Fortres Grand also argues that its drop in sales means there must have
been confusion. But that is a thin reed to lean on. Fortres Grand alleges that,
as a result of the movie, “[o]nline searches for CLEAN SLATE now return
hundreds of results relating to the CLEAN SLATE program from The Dark
Knight Rises,” Compl. at 5, ¶ 24, and that it has had to expend money on
“corrective advertising.” Far from implying confusion, these allegations
merely logically connect Fortres Grand’s loss of sales with its website
showing up lower in search results. See, e.g., CHITIKA.COM , The Value of
Google Result Positioning, http://chitika.com/google-positioning-value
(showing that the ten results on the first page of Google’s search results for
a particular term get 91.5% of the traffic). And proof that internet searchers
are more interested in exploring the feasability of a fictional hacking tool
than in Fortres Grand’s desktop management software is not proof that they
are confused about the source of Fortres Grand’s software.
16 No. 13-2337
Fortres Grand is selling such a diabolical hacking tool licensed
by Warner Bros. Fortres Grand’s real complaint is that Warner
Bros.’ use of the words “clean slate” has tarnished Fortres
Grand’s “clean slate” mark by associating it with illicit soft-
ware. But this type of harm may only be remedied with a
dilution claim. See 15 U.S.C. § 1125(c). And it would not be
appropriate to use a contorted and broadened combination of
the “reverse confusion” and “related products” doctrines to
extend dilution protection to non-famous marks which are
explicitly excluded from such protection by statute. Id. (“the
owner of a famous mark … shall be entitled to an injunction
against another person who … commences use of a mark …
that is likely to cause … dilution by tarnishment of the famous
mark” (emphasis added)).
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
No. 13-2337 17
its movie is shielded by the First Amendment. Eastland Music,
707 F.3d at 871 (“It is unnecessary to consider possible constitu-
tional defenses to trademark enforcement, … [when the]
complaint fails at the threshold.”).
III. Conclusion
Because Fortres Grand has failed to plausibly allege
confusion, it has failed to state a claim for trademark infringe-
ment under 15 U.S.C. §§ 1114, 1125 and Indiana unfair compe-
tition law. Accordingly, the district court did not err by
granting Warner Bros.’ motion to dismiss the complaint.
AFFIRMED.