Netflix is seeking the dismissal of a lawsuit by indie publisher Chooseco over its interactive Black Mirror episode “Bandersnatch”.
Chooseco LLC, based in Vermont, is seeking at least $25m in damages and legal fees, claiming the feature breached its Choose Your Own Adventure trademark.
The hit programme saw its video game designer protagonist say in the opening sequence his new game is based on “a Choose Your Own Adventure book” called Bandersnatch.
But lawyers for Netflix argue the phrase is common and simply “a reference to the book’s narrative device”.
It also dismissed claims by Chooseco of similarities between the border of a game by fictional video game developer Tuckersoft and its own book covers. Netflix said there was “nothing distinctive” about the publisher’s borders and the designs were in any case “markedly different”.
In a filing last week, the online broadcaster said: “No amount of further amendment will change Bandersnatch’s actual uses of the phrase ‘Choose Your Own Adventure’. Nor will amendment change the fictional ‘Tuckersoft’ company’s uses of the rounded color borders, let alone make them similar to Chooseco’s.
“Nor will amendment alter the First Amendment protection for such artistic uses, the protection for descriptive fair uses like the use of the challenged phrase, or the absence of any secondary meaning for the rounded color borders element of Chooseco’s trade dress.”
At the time of filing its suit in the US District Court for the District of Vermont in January, Chooseco’s co-founder and publisher Shannon Gilligan argued: "The misappropriation of our mark by Netflix presents an extreme challenge for a small independent publisher like Chooseco. 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.
"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. We would prefer not to resort to litigation, but given the damage that we will suffer as a result of the use of our mark we've been left with no other option.”