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Netflix Sued By 'Choose Your Own Adventure' Publishers Over Black Mirror: Bandersnatch (polygon.com)
An anonymous reader quotes a report from Polygon: Netflix's first interactive movie, Black Mirror: Bandersnatch makes no bones about its Choose Your Own Adventure inspiration, and that's reportedly caught the eye of the series' original publisher. Chooseco, a publishing company specializing in children's books, is suing Netflix for infringing on the company's "Choose Your Own Adventure" trademark. According to the official complaint, Netflix has been in negotiations with Chooseco over a license for the series since 2016, but Chooseco says Netflix never actually gained permission to use it. After the release of Black Mirror: Bandersnatch late last month, Chooseco has filed a complaint against Netflix for $25 million in damages, as the company says that Netflix's new movie benefits from association with the Choose Your Own Adventure series, without the company ever receiving the trademark. Chooseco says it sent a cease-and-desist request to Netflix at least once over the Choose Your Own Adventure trademark in the past. Netflix has declined to comment on the complaint.
Hmm, should I turn to page 93 to side with the plaintiff, or page 134 to side with the defendant....
I never thought that choose your own adventure books were actually related to this episode in any way other than an idea. I didn't once associate Chooseco with this Netflix - Black Mirror episode.
Even if I had associated them, is it an issue to come up with a story that has something to do with the writers childhood? Are we not supposed to write about the action figures we used to play with too?
--
Don't cry because it's over, smile because it happened - Dr. Seuss
It really isn't. It was originally a British show (it ran on Channel 4) that Netflix picked up after the first two series. I haven't gotten around to watching the more recent episodes yet, but the originals were pretty good. If I had to describe it succinctly, "Modern Twilight Zone" seems to do a good job.
Of course it's modern TV so they can get away with a bit more. The first episode featured a plot where some British royal family member has apparently been kidnapped and the kidnappers are threatening to kill the person unless the Prime Minister fucks a pig on live television. That might sound crude (and it is) but it's just as engrossing as it is gross. I'd suggest giving it a try.
I thought for sure that CYOA was generic as hell by this point.
It is. But Netflix specifically referenced Chooseco as an inspiration, without permission to do so.
That was stupid and amateurish. They are now going to get an extremely expensive lesson in intellectual property law.
IINAL, but it would seem to me if Netflix is using the CYOA statement as a descriptive term, and not implying their show is a CYOPA product they may be able to claim fair use. You can use trademarks in such as a way if they are descriptive and do not imply endorsement or cause confusion. If I read the complaint correctly the issue is a line in the show. t's pretty clear that Netflix makes movies, not children's adventure books, so an actor saying "This is like the CYOA book XXX" as par tof a scene isn't likely to cause confusion.
I'm a consultant - I convert gibberish into cash-flow.
Looking at the article (and others), did Netflix actually call it that? From their official site https://www.netflix.com/title/80988062 they refer to it as "A mind-bending tale with multiple endings". Sounds like the old movie Clue, or Army of Darkness (if you had the two ending version).
Also, wouldn't almost any modern day video game fall under this? Why aren't they suing the entire game industry?
On another note there already is a movie that promotes itself as a Choose Your Own Adventure movie "The Abominable Snowman", but I suspect the film did horrible so the they didn't want any part of that. When I say part, I mean part of the profit that is.
Trademarks are for branding in written content, not spoken. The phrase, "choose your own adventure" is not trademarked because that is impossible. Even with subtitles they would have to be trying to confuse the customers with something that is similar to it's trademark, the words alone are not enough.
Coca-Cola would have a better chance of suing Pepsi for saying "it's like Coke but tastes better" in one of their commercials.
Anons need not reply. Questions end with a question mark.
Just because you say that you are inspired by a trademark shouldn't be enough to get your in trouble. If Netflix actually said that the movie was produced with Chooseco or specifically use the phrase "choose your own adventure" (which they may have done for all I know) then I could see a problem.
If I make a yo-yo and say that I was inspired by Duncan Toys I should be allowed to do so. If I used the phrase "The Original. World's #1" then I could see having a problem.
I guess there is no reason Chooseco can't roll the dice and see what the courts say though.
They essentially got free advertising from Netflix, and instead of saying 'thank you' decide to sue.
Perhaps. But litigation is more profitable than gratitude.
Netflix should have known better.
Imagine if Samsung tablets were advertised as having rounded corners "inspired by Apple."
Netflix won't pay much, if anything, to Chooseco.
Chooseco has no IP granting them exclusive rights to the concept of a choose your own adventure. They have copyrights over the individual works, but that only applies to those specific works. There is no patent for choose your own adventure books because they've been been around since the mid-70s, well before our patent system was completely subverted. Chooseco is just hoping to get a few bucks with the threat of a lawsuit. If it goes to trial, Chooseco will lose.
IBM, on the other hand, actually got a patent on choose your own adventure movies in 2003 (well after our patent system was subverted and anything could be patented if you added "on a computer" to it).
It wouldn't surprise me if Netflix reveals that they licensed IBM's patent prior to making Bandersnatch. If they didn't license that patent, then IBM is the company that Netflix should fear a lawsuit from.
Anyone can claim a trademark. After using it a while, they can apply for registration. They will learn that some things qualify and some don't and some are indeterminate. A name like Xerox was easy to qualify because it was an invented word and nobody else had claimed it.
Even if you can register a TM, it may be challenged in court on various grounds. Suppose you claimed Lunch Time as a TM. It is far more likely than Xerox to have been used already and it is a risky choice. Someone might argue that Lunch Time is a common phrase undeserving of a trademark.
Failure to continuously use your TM can forfeit your rights. Failure to defend it in the face of others' using the same mark can forfeit your rights. IP law is complicated and not always rational and may have changed since I glanced at it in 1975.
...omphaloskepsis often...
You can trademark bags of plain, ordinary sand if you wanted to. Let's say you called it "WackySand". That wouldn't stop anyone else from selling bags of sand, but it sure would stop them from selling bags of sand labelled "WackySand" or even "WackeeSand". Anything that might make people think the "WackySand" company endorses a bag of sand is off-limits.
The sand itself you're selling can be completely generic. It doesn't have to be special to be trademarked.
Now if people start calling all bags of sand "WackySand", then yes, you lose your exclusive right to that name. But if you're a sand vendor who *thinks* that "WackySand" has gone generic, but it hasn't been tested in court, guess who gets to be the guinea pig in the first test?
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Maybe the judge will have some fun with this.
If the plaintiff wishes to proceed with the facepalm of the year lawsuit, turn to page 47.
If the anything-to-make-a-quick-buck plaintiff wishes to wisely drop this complete waste of my time, turn to page 93.
Isn't there such a thing as fair use.
No, not for trademarks. You are thinking of copyright, which has nothing to do with this dispute.
If you read the actual lawsuit filing that is linked from TFS one can see that Chooseco isn't claiming that Netflix said that they where inspired, they claim that people will believe that the Bandersnatch book from the movie is an actual CYOA book from Chooseco and that will scare people away from their brand since the book in the movie is dark and disturbing.
Extra hilarious are these two claims:
35. Netflix has benefitted from its association with Chooseco's iconic brand. Bandersnatch has been discussed widely in the press and many reviews of the movie include the phrase or even reference the book series.
36. The association between Bandersnatch and Choose Your Own Adventure has been widely discussed on social media. That discussion demonstrates the dilution of the brand.
So basically, Netflix didn't say that their movie is a CYOA movie but reviewers and people on social media does and therefore we want money from Netflix...
Yes, some of the CYOA books -- including #1, The Cave of Time -- you could get trapped in a loop. And "Inside UFO 54-40" had an unreachable ending.
The first episode is probably the worst one. Normally people I know who recommend the show, just say skip the first episode. I would really recommend giving it another shot. A million merits or white Christmas are good.