Netflix Sued by “Choose Your Own Adventure” Over Bandersnatch

Dalek

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Oct 25, 2017
13,138
https://pitchfork.com/news/netflix-sued-by-choose-your-own-adventure-over-bandersnatch/

Netflix has been sued for trademark infringement over its new interactive film Black Mirror: Bandersnatch, The Hollywood Reporter reports and Pitchfork can confirm. The lawsuit was filed today (January 11) in a Vermont federal court by Chooseco LLC, the book publisher that owns the rights to the “Choose Your Own Adventure” trademark. According to Chooseco’s complaint, Netflix “actively pursued a license to use CHOOSE YOUR OWN ADVENTURE” starting in 2016, but was not granted one. The lawsuit also states that, prior to Bandersnatch’s release, Chooseco sent Netflix a cease and desist request.

According to Chooseco’s complaint, “Netflix has no license or authorization to use Chooseco’s trademark and, upon information and belief, used the mark willfully and intentionally to capitalize on viewers’ nostalgia for the original book series from the 1980s and 1990s.” Further, Chooseco writes, “The film’s dark and, at times, disturbing content dilutes the goodwill for and positive associations with Chooseco’s mark and tarnishes its products.”

Chooseco LLC is asking for at least $25 million in damages or profits (whichever is greater) from Netflix Inc., owing to alleged trademark infringement, false designation of origin, unfair competition, and trademark dilution.
 

Maxim726x

Avenger
Oct 27, 2017
4,382
Should have instead called it 'choose your own path' or something similar... Not as if we don't all know it's a choose your own adventure style movie.
 

NealMcCauley

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Oct 27, 2017
3,947
“The film’s dark and, at times, disturbing content dilutes the goodwill for and positive associations with Chooseco’s mark and tarnishes its products.”
IIRC all the CYOA stuff I read growing up was pretty hardcore. Maybe those were knockoffs.
 

gutshot

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Oct 25, 2017
2,561
North Carolina
This isn't even the first CYOA thing that Netflix has done. They have a Minecraft one and a Puss-in-Boots one, which have been on there for months now. There may be more, but those are the two I know my kids have watched.

I don't think they ever use the phrase "Choose Your Own Adventure" though, so I'm not sure Chooseco has much of a case here. Clearly, they are just trying to capitalize on the popularity of the Black Mirror episode and force Netflix into a settlement (which might work since Netflix has gobs of money and it might be easier to just settle than fight it).
 

PlanetSmasher

The Abominable Showman
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Oct 25, 2017
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I'm not sure they have a legal case for this. The film was barely even mentioned to be interactive until RIGHT before it came out.
 

FaceHugger

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Oct 27, 2017
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Did Netflix ever promote it on their various platforms as "choose your own adventure" for anyone? Because I myself never saw that phrase used in my Netflix experience (including the promotional emails I receive from them).
 

Kirblar

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Oct 25, 2017
26,493
The lawsuit linked in the article claims:
Ah, that makes this interesting, because this is basically a Kleenex (referring explicitly to a brand) vs "Kleenex (referring to any tissue) argument.

It kinda seems like this is gonna end up depending on how pedantic the Judge they get is.
 

jason10mm

Banned
Oct 27, 2017
383
Tn, USA
There are legions of CYOA variations in the book world, so the concept itself can't be infringed on. I hope netflix crushes these parasites. If Netflix tried to get permission to use the CYOA verbiage as a marketing point but was denied (and then didnt use CYOA in marketing) then I dont see how chooseco has a valid complaint. This kind of opportunistic litigation is a blight.
 

Shibi

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Oct 25, 2017
252
I believe the main character refers to the book Bandersnatch as a "choose your own adventure" in the film. That may be where the problem arises.
 

Allforce

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Oct 25, 2017
1,801
In the first few minutes of the movie, the protagonist refers to a fictional book in the diegesis as a "Choose Your Own Adventure" book.
So they're suing the filmmakers then? I don't get their case. You can't mention their product in any other medium or you're facing a lawsuit?
 

studyguy

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Oct 26, 2017
6,897
TIL 'Choose your own adventure' wasn't just a generic genre name but like a trademarked brand like Q-Tips vs cotton swabs.
 

SliceSabre

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Oct 25, 2017
3,995
I wondered why Netflix themselves seemed to avoid ever actually calling it a CYOA story. Now I get why.
 

Chestbridge

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Oct 29, 2017
101
The Source said:
In the first few minutes of the movie, the protagonist refers to a fictional book in the diegesis as a Choose Your Own Adventure book. Netflix has no license or authorization to use Chooseco's trademark and, upon information and belief, used the mark willfully and intentionally to capitalize onviewers' nostalgia for the original book series from the 1980s and 1990s
So they're suing the filmmakers then? I don't get their case. You can't mention their product in any other medium or you're facing a lawsuit?
You need permission from the trademark holder (in most cases, there are a few expections). Netflix tried to get the permission, failed, then used it anyhow.
 

Woetyler

Banned
Oct 27, 2017
1,154
So they're suing the filmmakers then? I don't get their case. You can't mention their product in any other medium or you're facing a lawsuit?
I think that's what they're getting at. It's silly imo, but I understand. I always thought CYOA was a genre as i've seen it in videogames, books, and now interactive story telling through little movies.
 

Shibi

Member
Oct 25, 2017
252
The film is claiming the book is a part of a product line. The owners of the CYAO product line are suing for falsely using their product line without an agreement. In this specific instance I think Netflix is in the wrong, but ianal.
 

That Guy

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Nov 13, 2017
226
This isn't even the first CYOA thing that Netflix has done. They have a Minecraft one and a Puss-in-Boots one, which have been on there for months now. There may be more, but those are the two I know my kids have watched.

I don't think they ever use the phrase "Choose Your Own Adventure" though, so I'm not sure Chooseco has much of a case here. Clearly, they are just trying to capitalize on the popularity of the Black Mirror episode and force Netflix into a settlement (which might work since Netflix has gobs of money and it might be easier to just settle than fight it).
It would set a precedent though. If Netflix are serious about creating more interactive shows/movies then they can't keep giving money away every time. They'll need to address it eventually.
 

LL_Decitrig

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Banned
Oct 27, 2017
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They only have a case if Netflix used the "CYOA" name in marketing directly.
They do have a point if the company had previously sought a licence which was denied. Trademark law is a bit hokey, to the extent that Netflix could reasonably be held to have tried to "pass off" their product as one covered by the trademark. The fact that the company was previously negotiating with the trademark owner is relevant.
 

gutshot

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Oct 25, 2017
2,561
North Carolina
Ah, that makes this interesting, because this is basically a Kleenex (referring explicitly to a brand) vs "Kleenex (referring to any tissue) argument.

It kinda seems like this is gonna end up depending on how pedantic the Judge they get is.
Yeah, but you can mention or show trademarked stuff in film and TV all you want. That doesn't run afoul of copyright law. (Adam Conover from Adam Ruins Everything recently tweeted about this.) You just can't use it marketing, so as long as Netflix didn't do that, they should be fine.
 

PlanetSmasher

The Abominable Showman
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Oct 25, 2017
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I’d be willing to side with Netflix if they hadn’t already tried to get the license and failed.
I mean, they asked nicely, then proceeded to not market the film at all as being a CYOA. They were as respectful as they could be considering Choose Your Own Adventure does not actually own the concept of "multi-branching narrative".
 

jph139

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Oct 25, 2017
4,383
Massachusetts
That's interesting, actually, and I think would probably be up to whoever can get better lawyers (or what side of the bed the judge woke up on). It's clearly inspired by/evoking the books, and kinda-sorta name-drop them, but it's right on the line.

Netflix will probably just throw some cash at them to go away though.
 

Kirblar

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Oct 25, 2017
26,493
Yeah, but you can mention or show trademarked stuff in film and TV all you want. That doesn't run afoul of copyright law. (Adam Conover from Adam Ruins Everything recently tweeted about this.) You just can't use it marketing, so as long as Netflix didn't do that, they should be fine.
It seems like it comes down to, does referring to the fictional Bandersnatch book inside the episode as a "CYOA" book run afoul because it's not a real CYOA book IRL, or is it fine because everyone understands "CYOA" as shorthand for a genre, like Kleenex is shorthand for a tissue nowadays.
 

bob smith

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Nov 1, 2017
136
i like the, 25 million in damages. I would love to see them identify those "damages" It didnt affect them at all, not one bit.
 

Shibi

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Oct 25, 2017
252
The difference between mentioning a. Trademark and this is that the film claims Bandersnatch is a part of a product line. You can argue "choose your own adventure" is a generic term, but it's the name of an actual line of books, so it can easily be misunderstood.
 

Axisofweevils

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Oct 25, 2017
1,573
They say in the movie itself that the Bandersnatch video game is based on a CYOA book.... That's probably where the problem lies.
 

Wraith

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Jun 28, 2018
2,620
The film is claiming the book is a part of a product line. The owners of the CYAO product line are suing for falsely using their product line without an agreement. In this specific instance I think Netflix is in the wrong, but ianal.
Yeah, if they'd avoided using that term in the script/on the prop, the company probably wouldn't have much of a case, as then it would be entirely about concept and not trademark. (And tons of other media have used this concept.)

I have to wonder if that scene was filmed before they were ultimately denied use of the trademark, and someone just made the call "Ehh, we'll keep it in anyway" instead of going back to edit/re-dub the scene.