The 'Choose Your Own Adventure' People Are Suing Netflix Over 'Bandersnatch'
from the ip-adventure dept
As you may have already heard, the latest iteration of the Black Mirror franchise on Netflix, titled Bandersnatch, is an absolute hit. You likely also have heard that it allows the viewer to influence the plot by making choices within the story's many inflection points. And, hey, perhaps you even heard that Netflix is facing legal action by Chooseco LLC, the company behind the "Choose Your Own Adventure" series that were popular in the '80s and '90s.
But if you haven't dug into the details, both in terms of why Chooseco states the Netflix series violates its trademark and the damages it is asking for in court, you may not realize just how bonkers all of this is.
Chooseco LLC is suing Netflix for trademark infringement and dilution over the streaming service’s new hit, claiming that Netflix is “willfully and intentionally” using its trademark “to capitalize on viewers’ nostalgia for the original book series from the 1980s and 1990s.”
Bandersnatch is an interactive film that allows viewers to make choices that drive the plot and decide the ending. Early on, the main character informs his father that “Bandersnatch is a ‘Choose Your Own Adventure’ book” and holds up a copy by fictional author Jerome F. Davies.
Now, it should be noted that this entire claim appears to rest on two things. First, there is very brief nod to the book series at one point in the film. Second, Netflix at one point had spoken with Chooseco about officially licensing their trademark for a Choose Your Own Adventure series that doesn't appear to have anything to do with Bandersnatch. But it's important to make something clear: at no point has Netflix ever referred to its own Banderstatch as "choose your own adventure," or anything close to that. It is true that many people may have compared the two because, duh, but that's not on Netflix (one might argue it's on Chooseco for picking a name that is so easily genericized). From there, Chooseco claims that there will be public confusion about the origin and/or affiliation of Bandersnatch having something to do with Chooseco, and it claims that the film's use dilutes the positive warm-and-fuzzies people have for the book series. On that front:
Overall, Bandersnatch is a dark film and the videogame that Butler creates in it based on its fictional inspiration is equally dark. Nearly every narrative fork includes disturbing and violent imagery. The movie has a rating of TV-MA, which means the content is specifically designed to be viewed by adults. Depending on the choices the viewer makes, it can include references to and depictions of a demonic presence, violent fighting, drug use, murder, mutilation of a corpse, decapitation, and other upsetting imagery. These dark and violent themes are too mature for the target audience of Chooseco's CHOOSE YOUR OWN ADVENTURE BOOKS. Association with this grim content tarnishes Chooseco' s famous trademark.
This, as should be plainly evident, is absurd on many levels. Fans of Bandersnatch aren't going to think less of the Choose book series because Bandersnatch is dark. Dark is the whole point of Netflix's series. Aside from that, a throwaway line in the beginning of the film serving as a simple nod to the book series doesn't exactly create the lasting impression that there is any affiliation here. Bandersnatch regularly does commentary on popular culture by turning it dark. It's kind of the point.
And, again, there's nothing in here that's going to cause people to somehow think Chooseco is involved in this film at all. The trademark claims ought to fail on the lack of any real concern over public confusion. And yet...
The real legal adventure, though, could come in its request for $25 million in damages or Netflix’s profits, whichever is greater, and that the damages be tripled because of the alleged willful nature of Netflix’s conduct.
Supporting the company’s claim that it deserves treble damages is its allegation that the two parties had been in "extensive negotiations" over the use of the trademark in 2016 but that Netflix never obtained a license. Also, Chooseco claims it sent Netflix at least one cease-and-desist letter regarding its unauthorized use of the "Choose Your Own Adventure" trademark in another program.
Every piece of evidence here is weaker than the last, which makes a $25 Million price tag seem a bit too much. Perhaps this is a lawsuit fishing for a settlement to make it go away, but I would hope Netflix digs its heels in instead.
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Filed Under: bandersnatch, black mirror, choose your own adventure, trademark
Companies: chooseco, netflix
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Other options for choosing ones own adventures
Does choose your own adventure apply to the court proceedings as well? Make motion A and go one course, make motion B and choose another? Will Chooseco then sue the attorneys for violating their Trademark?
On the other hand, this certainly seems to be making claims on an idea rather than trademark. Where are the logos? What was the actual trademark violation?
Seems more like advertising the Choose Your Own Adventure book rather than any competition.
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If that's the only reference, then I'd say they were using the CYOA mark as a way to describe the book, which in my not-a-lawyer opinion makes it nominative fair use.
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Missing a point?
Quoth the suit: "These dark and violent themes are too mature for the target audience of Chooseco's CHOOSE YOUR OWN ADVENTURE BOOKS. Association with this grim content tarnishes Chooseco's famous trademark."
Quoth Tim: "Fans of Bandersnatch aren't going to think less of the Choose book series because Bandersnatch is dark."
I don't think that was the point they were going for. I feel it was rather intended to convey the idea that parents and teachers and politicians and goody-two-shoes and what-have-you might start a boycott of Choose Your Own Adventure books because Bandersnatch is full of many things completely inappropriate for children, and thus either A) the books might also contain things completely inappropriate for children, or B) the books are fine, but someone who likes them might see or hear about the "Choose Your Own Adventure movie" and think Bandersnatch is equally child-friendly.
I still think that's a fairly weak argument from a logical (let alone legal) standpoint, especially when there are so many situations I can point to like Marvel Comics, where Deadpool, Daredevil, Luke Cage, and Wolverine (among others) appear in bloody, gory, sexually-active R-rated or MA-rated films and television... and in the Super Hero Squad TV show and games aimed at first graders.
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Re: Missing a point?
Sorry, CYOA, I loved the books but this smells of sour grapes over not getting your licensing deal.
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Their still making books?
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I thought CYOA was inspired by interactive Fiction.
so they are going after interactive films / interactive movie now, they are a bit late to the game.
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Seriously?
https://en.wikipedia.org/wiki/List_of_interactive_movies
Apparently Fox was licensing an official movie from Choseco. I'd wager that if that fell thru, Choseco would blame Netflix.
But hey - it's a permission based culture. You can't just *do* something without a license, right?
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Re: Their still making books?
I'm still waiting for John Lennon's corpse to start making works from the incentives paid to Yoko Ono.
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Re: Re: Missing a point?
More likely it's "Netflix have lots of money and we don't", which is usually the basis for these kinds of suits. Happytime Murders is actually the only such suit I can think of that targeted a flop, most others tend to wait until the property is a massive hit before filing.
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Questionable timing
They've apparently been in negotiations since 2016. However, the trademark application (serial #87422202) was made on 24 April 2017, and only got the publication for opposition in February 2018. Now, another made at the same time (concurrent serial numbers) for board games was published for opposition in September 2018, and granted Jan 8 2019 (yes, during the shutdown!, and is the mark referenced in 16) while one for online magazines is also not yet granted. Thus we can assume there's oppositions filed.
Word Mark CHOOSE YOUR OWN ADVENTURE
Goods and Services IC 041. US 100 101 107. G & S: Production of television programs, live-action comedy shows, drama films, interactive films, comedy films, animated films, and films featuring multiple choice and multiple ending fiction stories; entertainment services in the nature of live theatrical performances
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 87422202
Filing Date April 24, 2017
Current Basis 1B
Original Filing Basis 1B
Published for Opposition February 13, 2018
Owner (APPLICANT) Chooseco LLC LIMITED LIABILITY COMPANY VERMONT P.O. Box 46 Waitsfield VERMONT 05673
Attorney of Record Catherine M.C. Farrelly
Prior Registrations 2807473;2905158;3234147
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE
So they've been aware of it for 2+ years, but only applied for a trademark 4 months before suing, with an applied, but not granted trademark.
Now, they do reference a trademark in there, and that was applied for July 1 2003, and granded December 21 2004.
HOWEVER, that is for "Goods and Services IC 009. US 021 023 026 036 038. G & S: Books, [ graphic novels and comic books featuring multiple choice, multiple ending fiction stories that are recorded on CD's, DVD's or are downloaded from global computer networks; prerecorded vinyl records, audio tapes, audio-video tapes, audio video cassettes, ] audio video discs, and digital versatile discs [ featuring music, comedy, drama, action, events, and/or animation; audio cassette players, CD players, DVD players, mini-disk players; CD ROM games; CD-ROM, DVD and internet game consoles; short motion picture film cassettes featuring comedy, drama, action, events and/or animation to be used with hand-held viewers or projectors; video cassette recorders and players, compact disc players, digital audio tape recorders and players; audio tapes, video tapes, CD's, DVD's and books, booklets, pamphlets, and newsletters sold as a unit featuring multiple choice, multiple ending fiction stories; computer programs, namely, software linking digitized video and audio media to a global computer information network; game equipment sold as a unit for playing a computer game; video and computer game programs; video game cartridges and cassettes; ] electronic games, and serialized publications, namely, interactive multiple choice, multiple ending stories and games delivered on optical discs, DVD, and CD-ROM; [ Motion picture films featuring comedy, drama, action, events or animation ]. FIRST USE: 20031216. FIRST USE IN COMMERCE: 20031216"
Ooh, that's books that can be downloaded, everything else is distributed on physical media, which is why they made the other application.
If they put off applying for the new (and correct) trademark because of the negotiations, then I guess they fell through in April at which point why didn't they sue then? In fact, why was the relevant trademark not filed in 2016? Or the suit filed when the negotiations failed, so as to prevent damages beforehand (perhaps with an injunction on the infringing term), rather than wait until it was somewhat successful?
So, there's certainly a case to be argued that the timing of the trademark applications (and the suit based on it) are extremely suspicious in terms of maximising revenue stream and claimed injury.
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Re: Questionable timing
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But what will Cunningjack Bandersnatch think of them
Could this be an Amazing race to the Ends of the earth, or will they send Forty something Cambridge spies to Kill a king? Next he'll be Hawking Broken news about Dunkirk and learning How to behave, whilst making Atonement (with 9 Kisses) for telling Burlesque fairytales that he had a Girlfriend in a coma and upsetting The other Boleyn girl, when it seems the two of them were Inseparable and would be back together in a Heartbeat.
My Starter for 10 has him searching Into darkness, for coal, that Black mass.
Out of Curiosity, could you do me A little favour? After the Parade's end, I was at the nags the other day and I was Tipping the velvet jockey to win, but he was beaten by the War horse, so now that I've lost the bet I've got to go down the Four lions and see some Creation Painted with Words. Apparently it's about Hills like white elephants, in August in Osage County, where you'll see Fields of gold on the Fifth estate. Also it seems, In the current war, that the man in the Rockefeller suit managed to save the Child in time, before a Rogue male abducted them and made them 12 Years a slave.
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I didn't even know "choose your own adventure" was the name of a series before reading this post. Thought it was just an alternate term for the gamebook genre.
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Sorry, but similar shows existed in Easter Europe in the '80s.
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In related news...
Space Ace Dexter was unavailable for comment..
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Re: Re: Their still making books?
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Re:
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Cave in and settle early. Go to page 27
Fight it in court. Go to page 15
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Otaku's Unite
I am sure I've played a few in 2010
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Re: Re: Re: Their still making books?
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It seems odd that someone would be using trademark for books, though it could be one of those shared-universe things. If you get over the issue of whether there ought to be a trademark at all, however, it is certainly possible that Chooseco could be producing goods/services using that mark.
Depending on the setting and prominence, this could actually be a false designation of trademark. You have the product identifying early on using the trademark, and more or less stating that the trademark owner is the origin of the TV show.
I don't know that it is a valid claim. But it is at least not as silly as the original post makes it sound.
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"tarnished"
No one will confuse this with "Choose your own adventure" brand, not just because the trademark use is obviously nominative but because everyone knows they haven't done *anything* at all for decades.
If anything can help pull their reprints out of obscurity, it is someone relevant reviving the concept and paying homage to their books. If they had any sense they would be capitalizing on this opportunity not complaining about it.
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Re: Otaku's Unite
https://en.wikipedia.org/wiki/Interactive_movie
Used to hang out in the arcade and play Dragon's Lair when that first came out. It always brought a large crowd around it because of the graphics.
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Re:
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Don't know what Chooseco are on if they're wanting to pretend their CYOA (definitely a generic phrase nowadays which wouldn't survive a trademark nullification challenge) aren't dark. I remember plenty of books where damn near every endpoint in the books was the first-person protagonist's death. It was a rare occasion that the failure endings weren't a death. I honestly, as a small child, found "my" repeated deaths a bit creepy.
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Clearly they've never played visual novels
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'Disturbing'?
I remember some super-messed-up endings for a lot of the actual Choose Your Own Adventure books. Like, getting impaled or crushed to death or exploded. There's even a few sites dedicated to them. So I'm not sure they have much moral ground to complain that their image might be 'tarnished' by this.
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Re: Re: Re: Their still making books?
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Re: Questionable timing
> Word Mark CHOOSE YOUR OWN ADVENTURE
It's a word mark. Specifically for the phrase "Choose your own adventure". Trademark doesn't grant them ownership of the interactive storytelling concept, only the phrase" choose your own adventure" in connection with the industries listed.
IANAL but there's no way they can win this suit.
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Re: But what will Cunningjack Bandersnatch think of them
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Re: Sorry, but similar shows existed in Easter Europe in the '80
And video games like Dragon's Lair
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"Too dark"? Have they actually read their own books?
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Re: "Too dark"? Have they actually read their own books?
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Re: "choose your own adventure"
https://www.retroist.com/2012/04/05/memories-of-tsr-and-endless-quest-books/
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Re: Questionable timing
They have multiple registrations for this mark. This one is from 2004:
Word Mark CHOOSE YOUR OWN ADVENTURE Goods and Services IC 009. US 021 023 026 036 038. G & S: Books, [ graphic novelsand comic books featuring multiple choice, multiple ending fictionstories that are recorded on CD's, DVD's or are downloaded from globalcomputer networks; prerecorded vinyl records, audio tapes, audio-videotapes, audio video cassettes, ] audio video discs, and digital versatilediscs [ featuring music, comedy, drama, action, events, and/oranimation; audio cassette players, CD players, DVD players, mini-diskplayers; CD ROM games; CD-ROM, DVD and internet game consoles; shortmotion picture film cassettes featuring comedy, drama, action, eventsand/or animation to be used with hand-held viewers or projectors; videocassette recorders and players, compact disc players, digital audio taperecorders and players; audio tapes, video tapes, CD's, DVD's and books,booklets, pamphlets, and newsletters sold as a unit featuring multiplechoice, multiple ending fiction stories; computer programs, namely,software linking digitized video and audio media to a global computerinformation network; game equipment sold as a unit for playing acomputer game; video and computer game programs; video game cartridgesand cassettes; ] electronic games, and serialized publications, namely,interactive multiple choice, multiple ending stories and games deliveredon optical discs, DVD, and CD-ROM; [ Motion picture films featuringcomedy, drama, action, events or animation ]. FIRST USE: 20031216.FIRST USE IN COMMERCE: 20031216 Mark Drawing Code (1) TYPED DRAWING Serial Number 78975496 Filing Date July 1, 2003 Current Basis 1A Original Filing Basis 1B Published for Opposition September 28, 2004
Registration Number 2913403 Registration Date December 21, 2004 Owner (REGISTRANT) Choose Co LLC LIMITED LIABILITY COMPANY VERMONT PO Box414 Warren VERMONT 05674 (LAST LISTED OWNER) CHOOSECO LLC LIMITED LIABILITY COMPANY VERMONTPO BOX 46 Waitsfield VERMONT 05673
Assignment Recorded ASSIGNMENT RECORDED Attorney of Record Mary Sotis Prior Registrations 2807473 Type of Mark TRADEMARK Register PRINCIPAL Affidavit Text SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20140507. Renewal 1ST RENEWAL 20140507 Live/Dead Indicator LIVE
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Re:
I doubt Netflix could or would cancel their mark. They probably will settle.
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Re: Sorry, but similar shows existed in Easter Europe in the '80
It's more about use of the trademark than whether or not there are other interactive adventures. There are other interactive adventures, but only one that uses or licenses the CHOOSE YOUR OWN ADVENTURE MARK legally.
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