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Television The Courts The Internet Entertainment

Netflix Sued By 'Choose Your Own Adventure' Publishers Over Black Mirror: Bandersnatch (polygon.com) 135

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.
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Netflix Sued By 'Choose Your Own Adventure' Publishers Over Black Mirror: Bandersnatch

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  • ...the only sane choice is "not to play".

    Quantity > quality over there lately. If my daughter still didn't watch the occasional cartoon, I would have cancelled it this year.
    • You could've watched Castlevania. It's not Netflix's fault you make bad decisions.
    • But the only choices are to play as

      1. USA
      2. USSR

    • by alvinrod ( 889928 ) on Friday January 11, 2019 @05:17PM (#57946914)
      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.
      • by Anonymous Coward

        I tried Black Mirror, and the first episode turned me off. The only thing interesting about it was the sheer outrageousness of the ransom request, which I just assumed would be brushed off as nonsense. But nope, an entire episode about a guy dealing with the threat and then reality that he'd have to fuck a pig. Nothing in the episode made up for how dumb that premise was.

        • Then you missed the whole plot for it was nonsense, the kidnapper released the "Princess" long before the guy fucked the pig.
        • 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.

    • by Anonymous Coward

      You are out of your freaking mind if you think they don't have quality content.

      Go back to your free range organic television shows. Fucking hipster trash can't stand when things get big and popular. They think every single thing in the world needs to be some kind of small batch bullshit that only they know about or it isn't worth shit.

  • by Anonymous Coward

    I thought for sure that CYOA was generic as hell by this point. Everyone calls every story ever made in this format by that trademark.

    • by Anonymous Coward

      I thought for sure that CYOA was generic as hell by this point. Everyone calls every story ever made in this format by that trademark.

      Agreed. I didn't even know there was a company called Chooseco or that there was a specific brand with that phrase.
      Bringing this suit is actually kinda dangerous for Chooseco. It has the potential to get their trademark completely invalidated. And I believe it should be invalidated.

    • Re:Interesting (Score:5, Informative)

      by ShanghaiBill ( 739463 ) on Friday January 11, 2019 @05:22PM (#57946948)

      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.

      • Poor Chooseco, I mean it's not like Netflix paid homage to a genre, and then referenced them explicitly.. the additional interest and sales they'd garner from the exposure must be brutal.

        Those books were popular when I was in grade school 20+ years ago; are they still a relevant/popular category? If not, maybe bandersnatch would wind up introducing people to a genre they otherwise wouldn't have been exposed to.

        They essentially got free advertising from Netflix, and instead of saying 'thank you' decide to su

        • 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."

          • Patents, Copyright and trademark are not the same. You can be inspired by a trademark all you want, as long as you don't give the appearance you are in anyway associated with the trademark owner you are completely in the clear. Just look at any generic brand groceries, Dr Radical is clearly inspired by Dr Pepper but there isn't any brand confusion so they are in the clear.
      • Re:Interesting (Score:4, Informative)

        by Rhipf ( 525263 ) on Friday January 11, 2019 @05:40PM (#57947040)

        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.

      • Depends (Score:2, Insightful)

        by JBMcB ( 73720 )

        Depends on how it was framed. If they used it in marketing materials they *may* be in trouble. If a director, or producer, or Netflix exec said it in an interview, they are probably safe.

        • Re:Depends (Score:5, Informative)

          by F.Ultra ( 1673484 ) on Friday January 11, 2019 @09:45PM (#57948198)

          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...

          • by JBMcB ( 73720 )

            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...

            Wow, that's just dumb. Summary judgement with expenses time.

      • Re:Interesting (Score:5, Interesting)

        by GrumpySteen ( 1250194 ) on Friday January 11, 2019 @05:50PM (#57947142)

        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 [uspto.gov] (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.

        • by Anonymous Coward

          Sony already did a CYOA movie in the mid-90s. You could go to a movie theater, pay full price for a ticket, and spend 20 minutes voting for scenes with the rest of the audience.

          It didn't take off.

        • Chooseco has no IP granting them exclusive rights to the concept of a choose your own adventure.

          Yet they do have IP granting them exclusive rights to their own trademark.

      • That was stupid and amateurish.

        Really? Isn't there such a thing as fair use. IIRC all they said was something to the effect of "it's a game like the choose your own adventure books" which I had actually never heard of before (it was Fighting Fantasy when I was a kid) so I actually thought they had just made up the name for the show to avoid upsetting Fighting Fantasy which is ironic given that, thanks to Chooseco, Netflix is now fighting fantasy.

        • 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.

        • That is not what they are suing for, don't know why TFS makes that claim. If one reads the lawsuit filing (it's linked in TFS) one can see that they claim that people will think that the Bandersnatch book from the movie is an actual CYOA book from Chooseco and since that book is dark and disturbing people will be scared away from CYOA books and thus Chooseco will suffer harm...
          • by Quirkz ( 1206400 )

            CYOA isn't dark and disturbing? What I remember of the books from when I was a kid:
            - dying in a blizzard
            - dying by falling off a cliff
            - dying from choking on a bone
            - dying from a shaman's curse
            - being shrunk by aliens
            - dying by being eating by ants
            - dying by aliens

            The one "win condition" I remember involved finding some angry magical sword that cut my palm and killed a bunch of people, but let me survive.

            • Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!
      • No they didn't and neither does Chooseco claim that they did. If you read the actual lawsuit filing that where linked in TFS then you can see that their complaint is based on that #1 The protagonist in the movie refers to the fictional Bandersnatch book that he bases his game on as a "Choose Your Own Adventure book" and #2 that the movie is dark and disturbing.

        So they claim that Netflix "dilutes the goodwill for and positive associations with Chooseco's mark and tarnishes its products". So they basically ar

      • But where is the intellectual property problem here? You can legally, ethically, and morally claim that anybody or anything is your inspiration for creativity as long as you don't copy it or use their trademark. Netflix did not claim this was a "choose your own adventure" product in their marketing, they just said that choose-your-own-adventure was an inspiration.

    • by bob4u2c ( 73467 )
      Looking at the article (and others), did Netflix actually call it that? From their official site https://www.netflix.com/title/80988062 [netflix.com] 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
      • I was thinking the same thing. I remember seeing 'interactive movies' as far back as the SegaCD, and visual novels are a huge thing with about the same premise (I think, never actually played one).

        This lawsuit sounds like baloney to me.
    • Re:Interesting (Score:5, Informative)

      by hey! ( 33014 ) on Friday January 11, 2019 @07:32PM (#57947690) Homepage Journal

      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?

  • by Anonymous Coward on Friday January 11, 2019 @05:02PM (#57946812)

    Hmm, should I turn to page 93 to side with the plaintiff, or page 134 to side with the defendant....

    • by Scarletdown ( 886459 ) on Friday January 11, 2019 @06:13PM (#57947266) Journal

      Oops. You were going to turn to page 134 to side with the defendant, but you accidentally looked at page 135. You have fallen into a pit, impaled yourself on a spike trap, and got your corpse butt raped by the super horny dragon that set the trap.

      Your adventure has ended. Best to go with cremation or closed casket, laddie. It is not a pretty sight.

  • by Arzaboa ( 2804779 ) on Friday January 11, 2019 @05:02PM (#57946816)

    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

         

    • Are we not supposed to write about the action figures we used to play with too?

      That depends on who owns the IP I would guess.

    • by Anonymous Coward

      Don't cry because it's over, smile because it happened - Dr. Seuss

      Don't cry because it's over, smile because it happened - Ludwig Jacobowski, 1899

      https://quoteinvestigator.com/2016/07/25/smile/

      Now who is infringing?

  • If they won't license it to you, just steal it and then settle out of court.

  • Visual Novels (Score:1, Insightful)

    And they haven't gone after every Visual Novel ever written?
    • by tepples ( 727027 )

      How many visual novels mention the "Choose Your Own Adventure" brand in their marketing materials or dialogue? I doubt many.

  • I haven't bothered to watch the film since it didn't really interest me. But trademark claims have very specially limits, and unless they brand was somehow using that trademark specially then I think Chooseco is S.O.L. You might as well try to trademark a genre of music.
  • Did silent steel get sued back in day?

    • by tlhIngan ( 30335 )

      Did silent steel get sued back in day?

      Unlikely because it never billed itself as "Choose your own Adventure".

      And there are so many different ways around the trademark, you don't actually have to use the phrase "Choose your own adventure" at all. "Interactive Movie" or "Choose what happens" or "Make your choice" are things you could use.

      Chooseco didn't go after the concept of a branching storyline, just a trademark.

      It should be noted that they're probably branching out - they did release a nice board game a

  • by Registered Coward v2 ( 447531 ) on Friday January 11, 2019 @05:26PM (#57946966)
    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.
    • by AmiMoJo ( 196126 )

      It's not a very accurate description though. The character they are controlling is not their avatar, it's more like "choose the protagonist's adventure".

  • This is yet another instance where I think they try to extend things too far. The "Choose Your Own Adventure" book series was aimed at kids, for starters. I used to be a big fan of those books as a kid, and tried to check them out at my local library whenever they had another one I hadn't read yet. But they certainly weren't "adult content" material. It seems odd to try to associate what they were doing with a Black Mirror episode that's clearly a lot more mature in nature. And all of that's before even a

  • Extremely weak case. (Score:5, Interesting)

    by Gravis Zero ( 934156 ) on Friday January 11, 2019 @05:38PM (#57947032)

    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.

    • by msauve ( 701917 )
      Bullshit. Not only can pronounced phrases be trademarked, so can pure sounds (e.g. NBC, THX, many more).
    • by dissy ( 172727 )

      That was along the lines of my thought process when I saw the headline..

      "Why would Netflix copy the official choose your own adventure logo/title?!?"
      "Wait, did choose your own adventure even *have* a logo?"

      A quick check on ye olde bookshelf and sure enough, no logo, and their title is simply white text in an orange/red oval border.

      So I went to look it up, it being the actual registered trademark.
      http://tsdr.uspto.gov/#caseNumber=4889435 [uspto.gov]

      That phrase, in that font, in that typeset, in an oval, in all caps, and

    • If the series (I haven't watched it) used the phrase "choose your own adventure" to quickly get across the concept of a story where the audience determines the progression of the plot, that actually sounds like a pretty good argument that the trademarked term has become genericized [wikipedia.org], and grounds for rescinding the trademark.
    • Trademarks are for branding in written content, not spoken.

      This is false. A trademark can be anything that is source-identifying for goods or services. It can be a color (see "UPS brown" [uspto.gov]), a scent (see the "flowery musk scent" of Verizon stores [uspto.gov] (ew)), or, yes, a sound (see the "Intel inside" chimes [uspto.gov]). Here's a whole page the USPTO dedicated to sound marks. [uspto.gov]

      The phrase, "choose your own adventure" is not trademarked because that is impossible.

      This is also false. It's not just possible to trademark phrases, Chooseco has held a registered US trademark for the CHOOSE YOUR OWN ADVENTURE word mark in books [uspto.gov] since 2004.

      • Do note that those are all specific and well defined instances, not generic.

        Also, the "CHOOSE YOUR OWN ADVENTURE" word mark is limited to it being written in uppercase in a certain typeset while the episode never even had it in writing.

        The courts shall validate this truth.

        • Do note that those are all specific and well defined instances, not generic.

          Every trademark is a specific and well defined instance of a particular means of source identification (name, logo, color, sound, trade dress, etc.) coming to be associated, via actual, continuous use in commerce, with the goods or services of the mark holder. None of them are generic, because then they couldn't be trademarks.

          Also, the "CHOOSE YOUR OWN ADVENTURE" word mark is limited to it being written in uppercase in a certain typeset

          This is false. The above referenced mark has mark drawing code 1 for "typed drawing", which is an archaic (pre-2004) but legally identical form of standard character mark. Standard [uspto.gov]

  • I was wondering when this was going to happen. IMHO, Bandersnatch really sucked much like the Choose Your Own Adventure book series. I remember reading them when I was a kid and wondering what the hell was so great about them.
    • Wasn't bandersnatch a term coined and made popular by Lewis Carrol? Seems like we have a minor bit of irony going on here.

  • Can a company patent a person's right to choose their own adventure in the consumption of entertainment? At what point does a "choose your own adventure" become a role playing game? Why don't they own the rights to those?
  • by swell ( 195815 ) <jabberwock@poetic.com> on Friday January 11, 2019 @06:17PM (#57947294)

    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.

  • by nehumanuscrede ( 624750 ) on Friday January 11, 2019 @07:48PM (#57947764)

    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.

He who has but four and spends five has no need for a wallet.

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