Netflix’s interactive movie Black Mirror: Bandersnatch is the focus of a $25 million trade mark infringement lawsuit by the ‘Choose Your Own Adventure’ book series creator Chooseco, which is arguing the online entertainment company has tarnished its valued property through unauthorised use.
‘Choose Your Own Adventure’ (‘CYOA’) is a series of children’s books – most popular during the 1980s and 1990s – in which the reader assumes the role of the protagonist of the story and effectively determines the outcome of this story through their own choices. Black Mirror: Bandersnatch certainly utilises this concept through its interactive approach for the viewer in which they are able to determine the next sequence of events in the story by making choices as the story progresses, culminating in multiple possible endings.
Black Mirror began as a popular TV series that has become recognised for its darkly critical perspective on humans and their relationship with technology, so this rather unique approach to storytelling in the realm of online entertainment viewership appears quite fitting for the property as it plays with and subverts its viewers’ expectations.
Indeed, while the use of the concept on its own does not seem of much concern, Chooseco have taken particular issue with the fact that the movie’s protagonist explicitly references ‘Choose Your Own Adventure’ within the first few minutes of the movie, something they assert Netflix does not have authorisation to do because of their trade mark ownership.
Chooseco insists it maintains federally registered trade marks – ensuring nationwide protection – in the US that include the word mark ‘Choose Your Own Adventure’, and that Netflix lacks any authorisation to use this mark in the way that they did. Extensive negotiations were allegedly held between Chooseco and Netflix regarding Netflix’s attainment of a licence to use the property, but no agreement was reached to grant such a licence. Netflix appears to have simply used the property regardless.
Chooseco are adamant that Netflix has wilfully used the mark in its movie in order to capitalise on the popularity of the brand, particularly the potential gains it may have intended to derive from generating nostalgia among its target audience of older viewers who possibly grew up reading the ‘Choose Your Own Adventure’ book series.
They have in fact contended that the movie “is causing confusion, tarnishing, denigrating, and diluting the distinct quality of the ‘Choose Your Own Adventure’ mark”, saying that its loyal audience has questioned its assumed association with this uncharacteristically dark and violent content. Of course, it must prove such an association does exist – a so-called ‘likelihood-of-confusion’ – if it were to fully pursue the suit in court.
Furthermore, Chooseco has expressed concern that such an association may hinder future book sales and licencing deals, including for example an optional licenced deal they maintain with Twentieth Century Fox to produce a ‘Choose Your Own Adventure’ TV series; the risk being that this licence has now been made less exclusive.
Netflix has yet to respond to this latest lawsuit. Readers may remember from a recent IP Harbour Article that Netflix had already been in hot water at the end of last year regarding its use of a statue of ‘Baphomet’ designed by The Satanic Temple; a suit which has now reportedly been settled amicably between the two organisations.