Netflix has scored big with its interactive feature Black Mirror: Bandersnatch. But on January 11, Vermont-based indie publisher Chooseco LLC, publisher of the classic Choose Your Own Adventure interactive children’s book series, added a twist of its own to the story, filing suit against Netflix in federal court for infringing its Choose Your Own Adventure trademark.
Released on December 28, 2018, Netflix's Bandersnatch centers around a video game designer who asserts that his work is based on “Bandersnatch...a Choose Your Own Adventure book.” But in its complaint, Chooseco officials say that Netflix not only failed to license the right to use its trademark in connection with the character's fictional Bandersnatch book, but that the film’s dark content, which includes "depictions of a demonic presence, violent fighting, drug use, murder, mutilation of a corpse, decapitation, and other upsetting imagery," disparages its trademark.
“The misappropriation of our mark by Netflix presents an extreme challenge for a small independent publisher like Chooseco,” said Shannon Gilligan, Chooseco’s co-founder and publisher, in a release. Gilligan said the publisher has received “an unprecedented amount of outreach” from people who believe the children's publisher is associated with the film, and alleges that “the use of Choose Your Own Adventure in association with such graphic content is likely to cause significant damage, impacting our book sales and affecting our ability to work with licensing partners in the future.”
Chooseco is seeking injunctive relief and at least $25 million in damages and legal fees—an award that, if the publisher prevails, could potentially be tripled due to what the complaint alleges is Netflix’s “willful” infringement.
In its filing, Chooseco alleges that Netflix had “actively pursued a license to use ‘Choose Your Own Adventure' in connection with films and interactive cartoons.” Further, after Netflix failed to secure to a license, Chooseco sent a written cease and desist to Netflix prior to the release of Bandersnatch.
While it’s unclear whether the discussions with Netflix cited in the complaint specifically included the Bandersnatch film or were more general, it may not matter. Any such negotiations would suggest that, at the very least, Netflix officials were aware that Choose Your Own Adventure was a trademarked term.
Citing the ongoing litigation, Chooseco officials declined to comment beyond a press release. At press time, Netflix had yet to comment.
This is not the first time Chooseco has sued a much a larger company for trademark infringement. In 2007, the company forced a settlement with Daimler Chrysler over a Jeep ad.
The unlicensed use of a trademarked phrase in an advertisement is of course different than an editorial, artistic use, such as in Bandersnatch. But while a fair use defense is available in trademark law, it is not nearly as robust as the fair use defense in copyright law. And unlike copyrights, trademarks must be vigorously defended, or they run the risk being weakened, or possibly even forfeited.
"We would prefer not to resort to litigation," Gilligan said, in a statement, "but given the damage we will suffer as a result of the use of our mark, we've been left with no other option.”
