Judge Will Not Dismiss “Choose Your Own Adventure” Suit Against Netflix

Plaintiff Chooseco LLC filed a suit against Defendant Netflix for using Chooseco’s “word mark CHOOSE YOUR OWN ADVENTURE in the dialogue of its film Black Mirror: Bandersnatch.” The complaint included allegations of “trademark infringement, unfair competition, false designation of origin, dilution under the Lanham Act and unfair competition under Vermont common law.” Netflix’s motion to dismiss the complaint for failure to state a claim was denied.

Chooseco publishes “CHOOSE YOUR OWN ADVENTURE” books, which are an interactive narrative that allows the reader to be the main character and make different choices, which can lead to different potential endings. Chooseco has also licensed this information to entities, such as Twentieth Century Fox, to create an interactive film series off of the books.

In 2016, Netflix made efforts to license the words “CHOOSE YOUR OWN ADVENTURE” from the plaintiff for use with its various films and cartoons. However, the parties were unable to reach a licensing agreement.  Further, Chooseco sent notices to Netflix to stop using the word mark in its marketing for Black Mirror: Bandersnatch. Bandersnatch is “an interactive film that employs a branching narrative technique allowing its viewers to make choices that affect the ‘plot and ending of the film.’” Viewers are essentially put into the main character, Stefan Butler’s, shoes. The central alleged infringement as it pertains to the film itself arose from the use of the words “Choose Your Own Adventure” in dialogue. Netflix also included the phrase as written by Chooseco in is closed-captioning and subtitles.

Chooseco stated four claims for relief against Netflix.  Chooseco alleged that Netflix infringed upon its trademark for the phrase and pieces of its trade dress. Netflix is also accused of trademark dilution because Netflix’s acts will allegedly confuse consumers and “dilute” distinction between the two. Chooseco’s third claim is for unfair competition and false designation of origin; Chooseco argued that consumers will confuse the products and think that Netflix’s product is associated with Chooseco. Chooseco finally stated that Netflix has violated Vermont’s unfair competition law by misleading consumers to believe an affiliation when none existed, thus harming Chooseco’s reputation.

In response, Netflix countered that its use of the phrase is protected by the First Amendment and not subject to Lanham Act claims because it is a work of art. However, Chooseco noted that Netflix’s Bandersnatch is not solely an artistic work, citing that Netflix is collecting user data and may use it for future projects or marketing efforts.

To illustrate the artistic use of the mark at issue to the premise of the film, Netflix explained its centrality to the plot. For example, “The protagonist of Bandersnatch uses CHOOSE YOUR OWN ADVENTURE to describe the fictitious book he intends to convert into a videogame.  Both the videogame and the book in the film have interactive narrative structures that allow the reader or player to make choices that alter the storyline.  Likewise, Bandersnatch employs a branching narrative technique that allows the viewer to make choices throughout the film that directly affect its plot.  The use of CHOOSE YOUR OWN ADVENTURE has artistic relevance because it connects the narrative techniques used by the book, the videogame, and the film itself.”

The court held that “Chooseco has sufficiently alleged that consumers associate its mark with interactive books and that the mark covers other forms of interactive media, including films.” Bandersnatch uses a “Choose Your Own Adventure” book in its film; it also uses an interactive videogame and film to illustrate these choices. The court stated that the “similarity between Chooseco’s products, Netflix’s film, and the fictitious book Netflix described as a ‘Choose Your Own Adventure” book increases the likelihood of consumer confusion.” Netflix also repeatedly uses the phrase as a description of its products. The court also noted that it does not have enough evidence to dismiss Chooseco’s claims based on Netflix’s purported fair use claim. Additionally, Netflix was notified of its use by Chooseco, so a good faith claim fails in this instance.

Chooseco is represented by Dinse, Knapp & McAndrew. Netflix is represented by Ballard Spahr, as well as Gravel & Shea.