Choose Your Own Litigation

January 31, 2019

On December 28, 2018, Netflix, Inc. released the movie Black Mirror: Bandersnatch which allows the audience to control the movie’s narrative and dictate the outcome through a series of choices.  The interactive experience quickly garnered a positive reception from critics and the general public for its creative and innovative format, with speculation developing as to what new forays would be launched into interactive media with this success.  This momentum, however, has been undercut with the commencement of litigation in the U.S. District Court of Vermont just two weeks later.

On January 11, 2019, Chooseco LLC filed suit against Netflix, Inc. alleging trademark infringement, unfair competition, false designation of origin, and dilution under the Trademark Act of 1946.  As the current owner of the CHOOSE YOUR OWN ADVENTURE mark, Chooseco alleges that Bandersnatch has infringed on its mark.  The CHOOSE YOUR OWN ADVENTURE series originated in the 1980s and is commonly associated with the idea of interactive media.  The books are written in the second person and place the reader in the shoes of the protagonist, directing one to different pages based on choices.  Originally published by and registered to Bantam Books, the CHOOSE YOUR OWN ADVENTURE series went out of print and the mark lapsed in the late ‘90s.  The series creator and long-time author R.A. Montgomery, alongside his wife Shannon Gilligan, co-founded Chooseco LLC to relaunch the series and expand into new media.

While continuing to publish new and old copies of the CHOOSE YOUR OWN ADVENTURE series, Chooseco has also moved into other mediums, such as licensing a tabletop board game in mid-2018 and forming an option contract with Twentieth Century Fox to develop an interactive film series based on the books.  Chooseco avers that for several years, Netflix, Inc. had been in talks to acquire a license to use the CHOOSE YOUR OWN ADVENTURE mark, but these did not pan out.  Leading up to the release of Bandersnatch, Chooseco avers that at least one written cease and desist request was sent to Netflix to halt the use of the CHOOSE YOUR OWN ADVENTURE mark in its marketing efforts for the television show Puss in Boots: Trapped in an Epic Tale.

The infringement allegations rest upon two details about Bandersnatch.  The first is that Bandersnatch, much like the CHOOSE YOUR OWN ADVENTURE series, puts its audience in the position of the protagonist and directs one to make choices to develop the plot and alter the ending.  Whereas in the books one flips to designated pages based on a choice, Bandersnatch viewers click a button to make their choice.  The second detail appears early on in the movie, during a scene all audience members would see.  The protagonist describes a book as a “Choose Your Own Adventure” book to his father when trying to explain his fascination with it.  Chooseco points to this moment, and the fact that this line is in quotes and is capitalized within the closed-captioning and subtitles for the movie, that Netflix, Inc. has knowingly and willfully used Chooseco’s trademark.

Chooseco is seeking $25 million in damages or Neflix’s profits on Bandersnatch, whichever is deemed to be greater, plus attorneys’ fees.  At the time of writing, Netflix has only responded by way of seeking an extension of time to submit a response.

Image: REUTERS/Mike Blake

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