Written by Samie Leigh
A recent lawsuit filed in Vermont against Netflix claims that Netflix’s interactive film Bandersnatch is likely to cause confusion to viewers. As consumers of Netflix, many would agree that Bandersnatch is quite confusing. The premise involves an aspiring video game designer, Stefan, who develops a game based on a fictitious interactive novel, which he describes as being part of a “choose your own adventure” book series. The film enables viewers to make decisions for Stefan resulting in a number of different pathways or endings.
What Is the Premise of the Bandersnatch Lawsuit?
The narrative style of allowing consumers to select alternate endings by flipping back and forth in a novel or gamebook is a staple of the brand built by Chooseco LLC. Although an idea itself cannot be trademarked, Chooseco owns the federally registered trademark “CHOOSE YOUR OWN ADVENTURE.” This trademark is associated with the books.
Chooseco also owns registrations for the mark in other related goods such as posters, blankets, board games, computer software, clothing. These goods have long been established, with first use dates as early as 1979.
Accordingly, in the context of trademark law, Chooseco claims that the use of the phrase in the film is “likely to confuse” consumers as to the source or sponsorship of the film. According to Chooseco’s complaint, the trademarked term was used in Bandersnatch, sans authorization, and is based on the same concept of allowing the consumer to choose what a character should do, resulting in a number of divergent endings.
Who Is Chooseco?
Chooseco is a brand that publishes thousands of choose your own adventure books and related products and services. The company describes its marketing strategy as “appealing to adults now in their twenties, thirties, and forties who remember the brand with pleasant nostalgia from their youth and then buy CHOOSE YOUR OWN ADVENTURE books for their own children.”
What Are Chooseco’s Complaints in the Bandersnatch Lawsuit?
 The complaint presents features of Bandersnatch that allegedly emulate Chooseco’s branching storytelling technique in an effort to capitalize on the “nostalgia” associated with the mark. However, the “dark and violent” themes of the Netflix film “are too mature for the target audience” of the Chooseco brand and therefore allegedly tarnishes the mark.
With respect trade dress, Chooseco also claims that the rounded colored borders of the Tuckersoft video game in the film are confusingly similar to the rounded colored borders of the Chooseco books.  See the Amended Complaint here.
According to Chooseco, consumers are likely to be confused as to whether the Netflix film is affiliated with the Chooseco brand. With respect to relief, Chooseco claims that it is entitled to treble damages because of the parties’ previous negotiations for the use of the trademark which never resulted in any licensing and at least one written cease and desist requires to Netflix in connection with marketing efforts.
In its motion to dismiss the complaint, Netflix asserts that the “choose your own adventure” phrase was merely a common and descriptive phrase to describe the style of the fictitious book’s narrative device. Netflix also asserts that the narrative style itself is not protected by trademark law.
In response to the trade dress claim, Netflix asserts that the designs are markedly different. Netflix also claims that Chooseco has failed to register the trade dress or to provide evidence that consumers associate the colored borders with the Chooseco brand.
What Is a Trademark?
A trademark is a word, phrase, logo, symbol or combination intended to distinguish the goods and services of a business from others. A trademark is also intended to identify the source of the goods and services. Trademarks cannot be used to protect ideas and cannot be asserted against a use when it is part of an artistic expression and not as a source identifier.
Here, it appears that Chooseco will need to establish a likelihood of confusion regarding the use of the trademarked term itself or the rounded style of the video game cover to make a valid claim. Chooseco does not have a trademark or trade dress claim on the concept of divergent, narrative storytelling.
The term “choose your own adventure” appears in the Netflix program, and is used to describe a fictitious book that inspires a fictitious video game developer. Moreover, the colored borders are used solely on the fictitious video game cover depicted in the film. It does not appear that these depictions would mislead the consumer into believing the source of the Bandersnatch film to be Chooseco. If that is proven true, then it is unlikely Chooseco will succeed in its trademark or trade dress claims against Netflix.
Have Questions About Your Trademark or Protecting Your Goods or Services?
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