8:38am PT by Eriq Gardner
Netflix's 'Black Mirror: Bandersnatch' Leads to "Choose Your Own Adventure" Trademark Lawsuit
Chooseco, LLC, the childrens' book publisher that owns the trademark to "Choose Your Own Adventure," has filed a lawsuit against Netflix over the immersive film, Black Mirror: Bandersnatch.
According to a complaint filed in Vermont federal court on Friday, Chooseco has been using the mark since the 1980s and has sold more than 265 million copies of its Choose Your Own Adventure books.
The plaintiff says that 20th Century Fox currently holds an options contract to develop an interactive series based on the Choose Your Own Adventure series, and that beginning in 2016, Netflix actively pursued a license.
"Chooseco and Netflix engaged in extensive negotiations that were ongoing for a number of years, but Netflix did not receive a license," states the complaint. "On at least one occasion before the release of Bandersnatch, Chooseco sent a written cease and desist request to Netflix asking Netflix to stop using the CHOOSE YOUR OWN ADVENTURE mark in connection with its marketing efforts for another television program."
Chooseco alleges that Netflix is benefitting from an association with its iconic brand, and that Black Mirror: Bandersnatch, which allows audiences to select the direction of the plot, has been widely discussed in the press as being connected to the phrase, "Choose Your Own Adventure."
Additionally, Chooseco points in the complaint (read here) to one scene where Stefan Butler, the main character, is preparing to pitch a video game he wishes to develop. He's explaining to his father that the game is based on the work of a fictional book. The father says the author must be good because his son is always "flicking backwards and forwards."
Butler responds, "No, it's a 'Choose Your Own Adventure' book."
Whether or not that can support valid trademark claims remains to be seen. Chooseco says Bandersnatch viewers have been confused about association with its famous brand and that accordingly, Chooseco has suffered reputational harm through connection with Netflix's dark Black Mirror series.
Netflix hasn't yet responded to a request for comment. The streamer will likely defend itself by pointing to allowances for descriptive fair use. Netflix has also avoided using "Choose Your Own Adventure" in advertising Bandersnatch, and there's also likely to be court attention on the Rogers test, wherein something of artistic relevance is only flagged if the use of the mark is explicitly misleading as to its source.
Claiming infringement, dilution and unfair competition, Chooseco demands at least $25 million in damages or Netflix's profits, whichever is greater. The plaintiff also seeks injunctive relief.
Throughout the years, Chooseco has actively policed the use of its mark. About a decade ago, the publisher sued DaimlerChrysler for using the "Choose your Adventure" slogan in a campaign for Jeeps. That case was later settled.