Chooseco, the publisher of the Choose Your Own Adventure series, is suing Netflix for $25 million or its profits, whichever is greater, over a trademark violation inherent to its Black Mirror: Bandersnatch movie. This movie experiments with a new, branching format, in which viewers can use their remote control to choose among different story paths that lead to multiple different endings.
This similarity has led some people leaving comments to assume Chooseco is suing over the idea of branching stories in general, but that’s actually not the case. The Choose Your Own Adventure series was not the first to come up with the idea of branching story paths, nor has it been the only publisher of such books. Anyway, a branching book would be a process, not a trademarkable word or phrase, and as such would be covered by a patent, not a trademark—and even if Choose Your Own Adventure had been the first, and had been able to patent the idea, the patent’s 14-year term would long since have expired by now.
I’m not a lawyer myself, but my layperson’s understanding of the matter is this. The trademark suit hinges on a character from the movie referring to something in the movie as a “choose your own adventure book.” If the item in the movie had actually been a genuine, branded Choose Your Own Adventure book from Chooseco, that would have been perfectly fine. Nominative use of trademarks—that is, using them to refer to the object of the trademark itself—is usually considered legal. That’s why I can use “Gen Con” within my Indianapolis tourist guide to refer to the actual Gen Con convention (even if they won’t let me use it on the front cover)—and, for that matter, why I can use “Choose Your Own Adventure” here without any danger of Chooseco deciding to sue me.
But using the phrase to refer to something that isn’t a genuine, branded Choose Your Own Adventure book from Chooseco, as Bandersnatch does, could lead to dilution of the trademark. The idea goes that people might start regarding it as a generic term they can use to describe any similar item with impunity. Legally speaking, Chooseco has to challenge such uses in court, because trademarks work on a defend-it-or-lose-it principle. If they let people use it in a generic sense, they risk walking the same road as escalator, cellophane, Kleenex, Frisbee, Xerox, Band-Aid, and a zillion other trademarks that have fallen into generic use—people use the terms to describe similar things regardless of brand, and courts generally won’t do much to punish commercial uses.
And just to complicate the matter, Netflix was looking into licensing the trademark from Chooseco, but the talks apparently didn’t go anywhere. That might give Chooseco a little more ammunition to suggest that the use was a willful and intentional violation.
Chooseco has recently been pushing the Choose Your Own Adventure brand again in a big way—including licensing that board game based on one of its titles that I covered at Gen Con last year. So it stands to reason they have an interest in stopping illegitimate uses of the trademark, especially in such a high-profile case as Netflix’s highly publicized new movie.
But Chooseco may still have an uphill battle. From my not-a-lawyer understanding of the law, trademarks made up of common words or phrases are among the hardest to defend—especially when they are just a succinct way of describing something. The trademark may already be diluted beyond redemption, just from decades of people using “choose your own adventure” in ordinary conversation.
After all, it’s the simplest way of describing a complex concept in ways someone else is likely to understand. If I go up to the average person on the street and start telling them about “this great branching-narrative story I just read,” odds are pretty good that the first words out of their mouth will be, “…say what?” But let me call it a “choose your own adventure book,” and they’ll immediately nod and know exactly what I mean.
This is a double-edged sword for Chooseco. Choose Your Own Adventure is one of the most broadly recognized brand names in its class, because pretty much everyone has heard of it. But it was such a broad, descriptive phrase that it was generic practically out of the gate, and that may make it hard for Chooseco to win this lawsuit. Just look at how many of the news stories about Bandersnatch from before the lawsuit broke used the phrase themselves.
Chooseco claims, “We have received an unprecedented amount of outreach from people who believed we were associated with the creation of this film, including parents who were concerned that we had aligned the CYOA brand they knew and loved with content that surprised and offended them.” But I have my doubts that most people who saw the movie were thus confused. The Internet is a big place, and you can always run across some people stupid enough to believe just about anything.
In any case, one way in which Chooseco and Netflix both win is that this suit has earned both parties more news coverage about their respective products. Regardless of how the suit comes out, at least they got some free publicity out of it.
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