Netflix has had a couple of run-ins with the lawyers of late. First, The Satanic Temple sued The Chilling Adventures of Sabrina over a statue featured in the background of the show (Netflix settled out of court) and now, they’ve had a suit filed against them by Chooseco, who claim that Black Mirror: Bandersnatch infringes upon its trademark of the phrase “Choose Your Own Adventure” and seeks $25 million in damages.
You can check out the lawsuit itself here, but the sticking points for Chooseco are that: “In the first few minutes of the movie, the protagonist refers to a fictional book in the diegesis as a “Choose Your Own Adventure” book.” They also claim that Netflix uses the phrase “willfully and intentionally to capitalize on viewer’s nostalgia for the original book series” and that “the film’s dark and, at times, disturbing content dilutes the goodwill and for positive associations with Chooseco’s mark and tarnishes its products.”
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So, does this suit have legs? In my (admittedly limited) legal opinion, I don’t think so. First, “choose your own adventure” is a pretty hard trademark to defend as it’s a straightforward description of a product’s use rather than containing any original language. Secondly, Netflix didn’t use the trademark in their marketing of Bandersnatch, and though it is mentioned in diegetic dialogue, that means that the viewer already has to be watching the show to reach the reference, so it cannot be said to be intentionally attracting fans of “Choose Your Own Adventure” to the show. Finally, if simply mentioning a trademarked phrase in a fictional context is ruled to be a breach of trademark, that’s inevitably going to have a chilling impact on what authors can write about.
If you’re a copyright lawyer, feel free to correct me if I’ve made any mistakes, but while I don’t think this is a frivolous suit (you’ve got to defend your IP!), I don’t think it’s going to win them any damages, either. Despite all that, it’s possible that the cash-rich company will just pay up to make the problem go away rather than enter into a lengthy legal battle. As always, watch this space for more.