Netflix settles suit over 'Black Mirror' episode
Netflix has settled a suit after it was accused of infringing the trademarks of the “ Choose your own Adventure” book series when it created and streamed its interactive film “ Black Mirror: Bandersnatch”.
In January 2019, Vermont-based publisher Chooseco sued Netflix for its alleged use of its word mark ‘Choose your own adventure’ in the dialogue of its film “Black Mirror: Bandersnatch” at the US District Court for the District of Vermont.
In its filing, it argued that in 2016, Netflix attempted to buy a licence to use the word mark in connection with various films and cartoons, but that Chooseco and the streaming company never reached an agreement.
On December 28, 2018, Netflix released “Bandersnatch”, part of the “Black Mirror” anthology, a dystopian series exploring the ills of modern technology.
Set in 1984, the film chronicles its central character’s struggles to develop a videogame using an interactive storytelling technique for a fictional video game company. Viewers essentially control the protagonist, Stefan Butler, who at one point during the film says: “No, it’s a ‘Choose Your Own Adventure’ book. You decide what your character does,” said the filing.
Chooseco argued that its book series, which originated in the 1980s, is for young adults in which the reader acts as the story's protagonist and makes choices that affect the narrative's plot and outcome.
According to the filing, Chooseco continues to print and sell thousands of these books each year, and part of its marketing strategy includes appealing to adults now in their 20s, 30s, and 40s who remember the brand with pleasant nostalgia from their youth and then buy the books for their own children.
Chooseco argued that in the first few minutes of “Bandersnatch”, the protagonist refers to a fictional book as a "Choose Your Own Adventure" book.
“Netflix has no licence or authorisation to use Chooseco' s trademark and, upon information and belief, used the mark willfully and intentionally to capitalise on viewers' nostalgia for the original book series from the 1980s and 1990s. The film's dark and, at times, disturbing content dilutes the goodwill for and positive associations with Chooseco' s mark and tarnishes its products,” said Chooseco in its complaint.
The book publisher further alleged that Netflix had adopted and is using trademarks from its book series “in a manner that is likely to cause confusion, and is causing confusion . . . among the general purchasing public”. It also claimed that to promote Bandersnatch, Netflix employed a similar, although not exact, trade dress as that used by the book series in multiple marketing campaigns.
“Netflix is likely to deceive the public into believing that the reference to a ‘Choose Your Own Adventure’ book in the film ‘Black Mirror: Bandersnatch’ originates from, is associated with, or is otherwise authorised by Chooseco,” said the filing.
Chooseco asserted that this confusion had damaged its “reputation, good will, and profits,” and that Netflix’s use of the mark harmed the reputation and diluted the distinctive quality of the mark. Chooseco also accused Netflix of unlawfully selling a product containing Chooseco’s trademark—creating an “express and implied representation that the product originates from, is associated with, or is otherwise authorised or endorsed by Chooseco.”
It argued that “Netflix has consciously and deliberately sought to capitalise on the distinctive quality and fame of Chooseco’s trademark and [the] consumer confusion that it has created.”
On Monday 23 November, the court vacated its order denying Netflix’s motion to dismiss upon the stipulation of both parties.
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