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Chooseco, the company behind the Choose Your Own Adventure book series, in January sued Netflix, claiming the Black Mirror interactive film violated its trademark rights after years-long license negotiations between the two companies reached a dead end.
In February, the streaming giant lost its bid to have the case dismissed. Vermont federal judge William Sessions wrote in his decision, “The physical characteristics and context of the use demonstrate that it is at least plausible Netflix used the term to attract public attention by associating the film with Chooseco’s book series.”
Now, Netflix is choosing a different path.
In an answer filed Tuesday, the streamer admits it did seek a license from Chooseco for a potential project but denies those negotiations had anything to do with Bandersnatch. Netflix also asserted a variety of affirmative defenses, including that Chooseco failed to state a claim, that its use is protected by the First Amendment and fair use, that there’s no likelihood of confusion and that the claims are barred by the doctrine of genericide.
It’s that argument which leads to Netflix’s next move.
The doctrine holds that if a once-protected trademark, aspirin for example, evolves to generically describe an entire category of products instead of a specific company’s product it’s no longer protectable.
But, first, Netflix argues that the “branching narrative” about Stefan Butler in Bandersnatch is unique from its predecessors. “Unlike most works in the genre of interactive storytelling, in Bandersnatch, the viewer does not step into the shoes of the protagonist whose fate the viewer purportedly controls. Rather, in Bandersnatch, the viewer controls the main character as an outside force,” writes attorney Seth D. Berlin in the filing. “When Butler ultimately becomes cognizant that his choices are being controlled, viewers are given the option to tell him he is being manipulated by a person from the future using a computer service called ‘Netflix.'”
Further, Netflix purposely set its viewers up to fail. Writes Berlin, “Every possible ending for the film turns out badly for Butler, despite a viewer’s efforts to navigate him to a successful ending.” That choice, the streamer argues, subverts the genre in order to comment on “the concern that people are increasingly controlled by technology,” which is an overarching theme in the Black Mirror universe.
Then the streamer puts forth its argument that the Choose Your Own Adventure series isn’t the only one using interactive narratives — and that it wasn’t the first to employ the technique.
“The phrase ‘Choose Your Own Adventure’ has become generic in its current use within the United States,” writes Berlin. “In contemporary parlance, any situation that requires making a series of unguided choices, or that provides an opportunity to go back and re-make a series of choices that turned out badly, is referred to as a ‘Choose Your Own Adventure.’… Thus, in its current usage, the phrase ‘Choose Your Own Adventure’ encompasses the entire genre of interactive-narrative fiction, a genus of media of which Chooseco’s book series is just one species.”
Netflix is asking Sessions for a declaration that it hasn’t violated Chooseco’s rights, is seeking cancellation of the company’s trademarks and wants to recover its costs related to the litigation.
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