Netflix Seeks Dismissal of ‘Bandersnatch’ Trademark Suit

Attorneys for Netflix asked a federal judge to dismiss a trademark infringement lawsuit filed in January by Vermont-based indie publisher Chooseco LLC, publisher of the classic Choose Your Own Adventure interactive children’s book series.

In a court filing this week, Netflix attorneys argued that its popular interactive feature film Black Mirror: Bandersnatch, which centers around a video game designer who asserts that his work is based on a Choose Your Own Adventure book,” does not infringe Chooseco’s trademarks, and is protected artistic speech.

“The phrase ‘Choose Your Own Adventure’ is used solely to describe a fictitious book by an imaginary author within an entertainment program that otherwise clearly identifies Netflix as its source,” the filing states, adding that use of the phrase, as well as the fictional book’s rounded borders “in no way mislead the public into believing that Chooseco is behind the fictional software company or, by extension, the Bandersnatch film and/or the Netflix service that streams it.”

Among their arguments, Netflix attorneys say that the film’s brief reference to “Choose Your Own Adventure” is protected by the First Amendment, “which bars trademark claims arising out of uses in artistic works in these circumstances.”

The phrase ‘Choose Your Own Adventure’ is used solely to describe a fictitious book by an imaginary author within an entertainment program that otherwise clearly identifies Netflix as its source.

In its initial complaint (which has since been amended) Chooseco officials alleged that Netflix not only failed to license the right to use its trademark in connection with the character’s fictional Bandersnatch book, but that the film’s dark content, which includes “depictions of a demonic presence, violent fighting, drug use, murder, mutilation of a corpse, decapitation, and other upsetting imagery,” disparages its trademark.“

Chooseco is seeking injunctive relief and at least $25 million in damages and legal fees—an award that, if the publisher prevails, could potentially be tripled due to what the complaint alleges is Netflix’s “willful” infringement.

In alleging willful infringement, Chooseco claims that Netflix had unsuccessfully pursued “a license to use ‘Choose Your Own Adventure’ in connection with films and interactive cartoons,” and, after failing to secure to a license, has ignored subsequent cease and desist letters.

Netflix attorneys concede that the company was aware of Chooseco’s trademark, but deny that the company was in discussions specifically concerning Bandersnatch, and suggest they did not consummate a license for a simple reason: they didn’t need one, citing the brief use of “Choose Your Own Adventure” as “a descriptive fair use.”

“Chooseco’s Amended Complaint fails as a matter of law for numerous reasons, including: the broad First Amendment protection afforded artistic works such as Bandersnatch; the doctrine of descriptive fair use embodied in the Lanham Act; and the complete absence of any likelihood of consumer confusion,” Netflix attorneys argue. “Chooseco’s Amended Complaint should therefore be dismissed with prejudice.”

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