An Artistic Defense to Claims of Trademark Infringement: Examining the Lawsuit Over Netflix’s Use of "Choose Your Own Adventure" Phrase in the Interactive Film Black Mirror: Bandersnatch
By Andrew M. Sevanian1
Andrew is an attorney at Poole & Shaffery, LLP. His practice areas include business transactions, corporate, intellectual property, and mergers and acquisitions. As an attorney, his goal is to establish collaborative working relationships with his clients while helping his clients find ways to succeed. In addition to his legal practice, Andrew is a movie buff.
As the illustrious Mel Brooks once said, "it’s good to be the king."2 However, when you are the proverbial king of digital entertainment platforms, you may just find yourself in the crosshairs of claimants contending your content contravenes their intellectual property rights. Such is the case with Netflix, Inc. ("Netflix"), the media streaming giant known for its vast library of movies, television shows, and documentaries. One such movie is Netflix’s Emmy-winning (2019) Black Mirror: Bandersnatchâan interactive film set, in the 1980s, that involves a protagonist attempting to adapt a fictional "choose your own adventure book" called "Bander-snatch" into a video game that will allow players to make choices for what the playable character does. Throughout the story, viewers of the film are given the opportunity to make certain choices, such as selecting one of two options for the protagonist’s breakfast cereal. Some of these choices create a domino effect of consequences and a modification to the story’s outcome. From a creative standpoint, it is an engaging and fascinating vehicle for storytelling. From a legal standpoint, some unwanted plot twists have developed for Netflix.
Chooseco LLC ("Chooseco"), publisher of the "CHOOSE YOUR OWN ADVENTURE" book series, sued Netflix in the United States District Court for the District of Vermont. Chooseco holds a number of federally registered trademarks for the phrase "CHOOSE YOUR OWN ADVENTURE," including United States Patent and Trademark Office ("USPTO") Registration Number 3234147, which covers, among other things: "books, motion picture theatrical films, on-line computer games, and serialized publications, namely, interactive multiple choice, multiple ending stories and games delivered by Video on Demand, Digital Video Recorder, cable, terrestrial, and satellite television."