Netflix Sued by “Choose Your Own Adventure” Over Bandersnatch

hemo memo

Member
Oct 26, 2017
2,811
Alrest
It’s amazing how something like this can get trademark. I thought of that popular YT channel trying to trademark “React”. It’s stupid in both cases.
 

gutshot

Member
Oct 25, 2017
2,220
North Carolina
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.
I'm not an expert, but I don't believe that would run afoul of anything. Whether it is a real book or not is irrelevant. All trademarks do is protect your mark from being used by another company to sell their products. It does NOT mean that all mentions or uses of that product must be sanctioned by the trademark holder. Even when they are being used in a less-than-positive light. Some examples:

Nazer was discussing Anheuser-Busch’s irritation that the Paramount movie Flight, starring Denzel Washington as an alcoholic pilot, showed his character drinking Budweiser, among other liquor brands. None of them paid for that product integration, nor did they give permission or license it. Again, that’s not necessary for a filmmaker to use a product.
On an episode of The Jay and Tony Show Show, Jay and Tony talked about having to blur logos on one of the Gigolos cast members’ underwear: “We had to blur those Louis Vuitton logos … on his little short underwear because they could have seen it and said, You’re fucking with our brand … because now people associate our brand with his penis.”

Louis Vuitton might have said that, but it’s not against the law to wear a brand’s underwear in a reality TV show.
And sometimes companies are litigious: Emerson Electric sued NBC over an episode of Heroes in which a character had her hand mangled in a garbage disposal with its brand name. The company later dropped its lawsuit.
Source: https://www.realityblurred.com/realitytv/2017/05/why-are-logos-blurred-on-reality-tv-shows/

Ironically, everyone assumes that brands must give permission to use their marks in TV and films. But the reason studios do it is not because it is illegal to show it without permission, it's because they don't want to get hit with frivolous lawsuits, like this one.
 

HardRojo

Member
Oct 25, 2017
7,385
So it's basically a case of a brand being used to refer to a product, except in this case the brand is not a made up word, but an actual phrase that would still make sense if said brand did not exist. Oh well...
 

Chestbridge

Member
Oct 29, 2017
60
You can't use the words choose your own adventure in any media without their permission? I get how trademarks work, but generally their strict about trademarking a sentence like that.

Still absurd.
Indeed, but contextually, this is a movie about choosing your own adventure and they have a character imply that it was part of that book series by mentioning the trademark, so it isn't just a case of saying those words, there's a lot of contextual implications. You can mention trademarks just fine in media without permission, but you have to be careful what you are implying.
 

meow

The Fallen
Oct 27, 2017
776
NYC
CYOA seems generic af. I didn't even know it was a brand before just now. How many people actually think of this company when you hear "choose your own adventure" vs. just a story with branching paths?
 

whytemyke

The Fallen
Oct 28, 2017
993
On the one hand, Netflix could sneeze $25mil and not even notice. However, I hope they let this go to court. There's no way a company should be able to say that their copyright extends from the marketing of the product to the concept of being able to actually pick your path in a story.

Truth be told, the best thing that could happen to that company is Bandersnatch, since it's not like a buyers market on kids wanting to enjoy that type of book. Really they should be paying Netflix money for giving people a reason to think about their stuff again.
 

LL_Decitrig

Member
Oct 27, 2017
8,400
Sunderland
I wondered why Netflix themselves seemed to avoid ever actually calling it a CYOA story. Now I get why.
Ironically, if the CYOA people failed to energetically pursue any and every possible misuse of their trademark, their property in the mark would diminish and eventually die. So while it's still a viable trademark that they feel is bringing in good money, they must pursue every single potential infringement. Those who hold a trademark must never sleep.
 

Jag

Member
Oct 26, 2017
2,978
I didn't read the lawsuit or see Bandersnatch, but if Netflix used the trademarked term CYOA to essentially sell a CYOA type story, then this may not be frivolous at all.

It's further compounded by the fact that they knew of the mark and tried to license it. Under the Lanham Act this show wilful intent and awareness of the mark. That can impose 3x damages.

The devil is in the details and without a further study of the facts and the complaint, saying that it is frivolous is ... frivolous.
 

23qwerty

Member
Oct 27, 2017
785
I feel like this lawsuit is better marketing than anything they've ever done before. Now people actually know that CYOA is an actual brand, who knew that before?
 

gutshot

Member
Oct 25, 2017
2,220
North Carolina
I didn't read the lawsuit or see Bandersnatch, but if Netflix used the trademarked term CYOA to essentially sell a CYOA type story, then this may not be frivolous at all.

It's further compounded by the fact that they knew of the mark and tried to license it. Under the Lanham Act this show wilful intent and awareness of the mark. That can impose 3x damages.

The devil is in the details and without a further study of the facts and the complaint, saying that it is frivolous is ... frivolous.
But they didn't use the term to sell the movie. The lawsuit's only complaint is that the trademark was mentioned in the movie. But that is not trademark infringement. The lawsuit, as it stands, is frivolous.
 

PlanetSmasher

The Abominable Showman
Member
Oct 25, 2017
25,939
I didn't read the lawsuit or see Bandersnatch, but if Netflix used the trademarked term CYOA to essentially sell a CYOA type story, then this may not be frivolous at all.

It's further compounded by the fact that they knew of the mark and tried to license it. Under the Lanham Act this show wilful intent and awareness of the mark. That can impose 3x damages.

The devil is in the details and without a further study of the facts and the complaint, saying that it is frivolous is ... frivolous.
Netflix didn't even market the movie as having multiple paths until the day it came out. And even then it just called it "interactive".
 

Orb

Member
Oct 27, 2017
6,235
USA
Even though the film used the phrase "choose your own adventure" directly, I'm not sure they have a good case. It is not against the law to use a trademarked word or phrase in a piece of fiction. And in the context of the film, the character is using that as a genericized term of art to describe the type of book it is, not even actually saying it is part of the official Choose Your Own Adventure series. He's essentially using it in the way that someone would call a facial tissue a "Kleenex." Using that term to market the product would be different, but as far as I know Netflix hasn't done that.

As gutshot stated above in their great post, people can get away with a lot more than you think with trademarks and copyright in fiction, but they generally don't because it can end up being more trouble than it's worth. It's easier to get an editor to blur something just in case rather than deal with any potential implications that come later on. Even a frivolous lawsuit that ultimately gets dropped can cost a company more than they want to spend.
 
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joedick

Member
Mar 19, 2018
458
I'm not an expert, but I don't believe that would run afoul of anything. Whether it is a real book or not is irrelevant. All trademarks do is protect your mark from being used by another company to sell their products. It does NOT mean that all mentions or uses of that product must be sanctioned by the trademark holder. Even when they are being used in a less-than-positive light. Some examples:

Ironically, everyone assumes that brands must give permission to use their marks in TV and films. But the reason studios do it is not because it is illegal to show it without permission, it's because they don't want to get hit with frivolous lawsuits, like this one.
But the examples you site show products being used in a realistic light. But if the Bandersnatch is a magical (unrealistic) item that causes pain to the characters and is referred to as CYOA, shouldn't they need to get permission for that?

Even if it's a longshot, there's enough interesting angles to this (seeking permission, using the term in the movie) that this should go to trial. Not sure why people are getting so worked up about it, do you guys own stake in Netflix?
 

Orb

Member
Oct 27, 2017
6,235
USA
But the examples you site show products being used in a realistic light. But if the Bandersnatch is a magical (unrealistic) item that causes pain to the characters and is referred to as CYOA, shouldn't they need to get permission for that?

Even if it's a longshot, there's enough interesting angles to this (seeking permission, using the term in the movie) that this should go to trial. Not sure why people are getting so worked up about it, do you guys own stake in Netflix?
I would think this would actually make their case weaker. Trademark infringement very often revolves around confusing consumers. I would think consumers would be less likely to think that a Choose Your Own Adventure book would turn evil and cause them to go crazy than the fact that their garbage disposal could mangle their hand.
 
Oct 27, 2017
928
Siri, what is a descriptive trade mark and is it valid?

Siri, if you use a term in a manner that does not affect the origin function of the mark can it constitute infringement?
 
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LL_Decitrig

Member
Oct 27, 2017
8,400
Sunderland
It’s amazing how something like this can get trademark. I thought of that popular YT channel trying to trademark “React”. It’s stupid in both cases.
You can apply for a trademark in a specific field. The classic example is Apple, the music organisation started by The Beatles, and Apple, the computer organisation started by three ne'er-do-wells in Cupertino. The negotiation seems to have been resolved by now.
 

neshcom

Member
Oct 29, 2017
228
Where are people in this thread seeing that Netflix marketed Bandersnatch on the CYOA trademark? The article is short on information (specifically that the main character in the film says "choose your own adventure"), but Netflix's marketing isn't really a component here.

I wouldn't be surprised if the 2016 attempt to license the CYOA trademark (note: not copyright) was so they could market their existing children's programming as CYOA. If this goes to court, I wouldn't be surprised if CYOA wins--their trademark isn't so old that it could be considered a generic term, right?
 

gutshot

Member
Oct 25, 2017
2,220
North Carolina
Where are people in this thread seeing that Netflix marketed Bandersnatch on the CYOA trademark? The article is short on information (specifically that the main character in the film says "choose your own adventure"), but Netflix's marketing isn't really a component here.

I wouldn't be surprised if the 2016 attempt to license the CYOA trademark (note: not copyright) was so they could market their existing children's programming as CYOA. If this goes to court, I wouldn't be surprised if CYOA wins--their trademark isn't so old that it could be considered a generic term, right?
Except trademark infringement requires a company using an unlicensed trademark to sell product. You can't file for trademark infringement when all that happened was a fictional character in a fictional show mentioned your trademark.

There is no way Chooseco would win in court, they are just hoping for a settlement from Netflix.
 

ReAxion

Member
Oct 26, 2017
2,492
i can't imagine that netflix sought for and failed to gain licensing, then went ahead and used it in a way that violates that. they'd be aware of it on some level. should make it punitive if chooseco fails, take away the trademark and call it genericized.
 

Aftermath

Member
Oct 27, 2017
3,365
Chose Your Own Adventure was the name trademarked? Damn I thought all along it was just a of a Genre of many books.

You can’t copyright a Genre Name like Cyberpunk for example....


Oh wait.
 

hikarutilmitt

Member
Dec 16, 2017
2,195
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.
Pretty much this. This is one of those things I "knew" as a kid then eventually became fuzzy on because of TV blurring or otherwise editing out brands on their shows. Once I took a media law class in college one of the sections was specifically about product advertisements, copyrights and trademarks and how they can or cannot be used.

The usual reasons things get blurred is specifically to avoid stupid lawsuits form companies even though it's free advertising. If someone on a reality show is wearing an Under Armor shirt and they're not a sponsor, the other sponsor(s) could pull funding of their own products or, worse, someone acts like an idiot and tarnishes the brand ("I'd never wear that brand because Johnny Bananas does!"). I suspect the former is a lot more common than the latter because at least in that case it can be thrown out in court.

My favorite was Statue of Liberty Adventure. It kind of unsettled me a bit how you died in some of them and may have contributed to my longstanding fear of heights.
 

faceless

Member
Oct 25, 2017
2,900
using that term inside the work is quite a bit different from using it outside of the work to promote it.

i don't see how their case will hold up.
 

Kilrogg

Resettlement Advisor
Member
Oct 25, 2017
1,153
It’s amazing how something like this can get trademark. I thought of that popular YT channel trying to trademark “React”. It’s stupid in both cases.
You can't use the words choose your own adventure in any media without their permission? I get how trademarks work, but generally their strict about trademarking a sentence like that.

Still absurd.
You can apply for a trademark in a specific field. The classic example is Apple, the music organisation started by The Beatles, and Apple, the computer organisation started by three ne'er-do-wells in Cupertino. The negotiation seems to have been resolved by now.
Trademark law has a rule where you can't simply trademark descriptive names/sentences, i.e. marks that just tell you what they're about. In the event that your trademark would be accepted by the IP office anyway, it's harder to defend from imitators than a completely original/made-up/unrelated mark like Apple. "Apple", as a word, doesn't describe computers.

Marks like "Choose your own Adventure" are really annoying though, because they don't technically describe a specific media (e.g. books, movies...) or product, yet they're pretty much a concept descriptor. Not only that, but it's become a well-established genre unto itself, not unlike "Reacts" are kind of a subgenre of YouTube videos. I'm sure there would be a case for destituting the CYOA mark on the grounds that it's very much descriptive of a concept that's arguably generic nowadays, but at the same time, the mark rides the line. I have a feeling it would be more clear-cut if the CYAO mark was instead called "Branching path stories". Now, that's unambiguously descriptive if you ask me.

Besides, one would have to check how adamantly the owners of CYOA have been defending their trademark all these years. That would also factor in. You're supposed to defend your brand lest it become generic if it's so ubiquitous that people start using it willy-nilly everywhere for any media with a similar concept... Which, arguably, is already the case in English-speaking cultures, right (I don't live in an English country)?

I didn't read the lawsuit or see Bandersnatch, but if Netflix used the trademarked term CYOA to essentially sell a CYOA type story, then this may not be frivolous at all.

It's further compounded by the fact that they knew of the mark and tried to license it. Under the Lanham Act this show wilful intent and awareness of the mark. That can impose 3x damages.

The devil is in the details and without a further study of the facts and the complaint, saying that it is frivolous is ... frivolous.
Yeah, the specific way Black Mirror referred to CYOA, and the fact that Netflix asked for Chooseco's permission unsuccessfully in the past, might be the key to this case. If it were up to me, I'd be tempted to just say fuck to Chooseco because everyone says CYOA being convinced it's just a generic genre name, but it's not as cut and dry as that.