Chooseco LLC, a children's book publisher, sued Netflix for $25 million in January 2019 after the streaming service came out with a new episode for its thriller TV series "Black Mirror" called "Bandersnatch," which allows the viewer to "Choose Your Own Adventure" by giving the viewer options to choose what choices characters make throughout the episode, ultimately determining different outcomes.
The idea to allows Chooseco's readers to determine the outcome of a story by choosing characters' actions was first coined and trademarked by the book publisher, which has been selling "Choose Your Own Adventure Books" since the 1980s.
Chooseco argues that Netflix actively sought a license to use the idea but released "Bandersnatch" before it received a license and that the streaming site has led consumers to confuse "Bandersnatch" with Chooseco's "Choose Your Own Adventure" brand.
In the episode, the main character holds up a "Choose Your Own Adventure" book, where the origins of his idea for a "Choose Your Own Adventure" video game originated.
"The subtitles cabined the phrase in quotation marks and capitalized the first letter of each word," U.S. District Court Judge William Sessions' Tuesday decision states. "The physical characteristics and context of the use demonstrate that it is at least plausible Netflix used the term to attract public attention by associating the film with Chooseco’s book series."
A Google search of the "Choose Your Own Adventure movie" shows an image of "Bandersnatch" and an image of Chooseco's book series, highlighting how the trademarked label is clearly associated with the "Black Mirror" episode and how viewers could confuse the two as the same entity.
Sessions agreed that Netflix can use a First Amendment defense derived from the 1989 Rogers v. Grimaldi case, which determined that a work with artistic relevance can use a trademarked idea as long as it is not misleading.
"Netflix used Chooseco's mark to describe the interactive narrative structure" of "Bandersnatch," the January filing states. "Moreover, Netflix intended this narrative structure to comment on the mounting influence technology has in modern-day life. In addition, the mental imagery associated with Chooseco's mark adds to 'Bandersnatch's' 1980s aesthetic. Thus, Netflix's use of Chooseco's mark clears the purposely-low threshold of Rogers' artistic relevance prong."
Chooseco argued "Bandersnatch" is not an artistic work but rather "a marketing tool" potentially "designed to collect behavioral information on" Netflix's more-than 1.6 million "Black Mirror" viewers.
Sessions later determined, however, that the case should not be dismissed until it is decided that Netflix's "Bandersnatch" does not mislead viewers about Chooseco's "Choose Your Own Adventure" series, according to a decision filed Tuesday.
"Because the Court finds that Chooseco has met its pleading requirements regarding these issues, Chooseco is entitled to proceed with its unfair competition claim," the decision states, adding, "Netflix's motion to dismiss is denied."