Netflix Seeks Cancellation Of "Choose Your Own Adventure" Trademark

from the you-have-chosen...poorly dept

This really should happen more frequently than it does. You will hopefully recall the ongoing drama between Chooseco, the company behind the Choose Your Own Adventure series of books we all remember from the 80s and 90s, and Netflix, producer of the hit series Black Mirror and its recent iteration entitled Bandersnatch. To catch you up, Bandersnatch was an interactive streaming show that billed itself as a "choose your own adventure" show, allowing the viewer to influence the progression of the story via choice. Chooseco sued Netflix over this production, claiming trademark infringement. Chiefly at issue is the appearance of a book mockup in the series, trade dress and marketing surrounding the show, and the fact that a character in the show refers to his own video game creation as a "choose your own adventure" game.

Separately, wielding this trademark, Chooseco inked a lucrative deal with Amazon to develop CYOA stories for the Amazon Alexa (keep this in mind for later). Chooseco also separately went after other indie game developers for using the phrase in their own marketing (again, important for later). And while Netflix sought to have the case tossed on grounds that its use of the phrase and trade dress was protected by the First Amendment, and was not protectable for Chooseco, and that there was no chance of customer confusion. The court, somewhat predictably, decided that those were arguments better made at trial.

And so here we are, with Netflix setting forth those same affirmative defenses... but with one notable addition.

Netflix is asking for the cancellation of Chooseco’s ‘Choose Your Own Adventure’ trademark, as the dispute between the two companies over a “Black Mirror” episode rumbles on.

Netflix, in a new filing at the US District Court for the District of Vermont on Tuesday, February 25, argued that not only has the term “choose your own adventure” become generic (and available under principles of fair usage), but also that characters and storylines from its 2018 interactive episode “Bandersnatch” differs from other interactive productions.

Yup. In addition to the affirmative defenses laid out in its motion for dismissal, Netflix is now asking that Chooseco's trademark be cancelled entirely. This is going to have a ripple effect across all of the other actions Chooseco has taken as set forth above. Those indie game threats? Those go away if Chooseco doesn't have a trademark to wield. Future lucrative deals such as that struck with Amazon? Nope, those are gone, too, potentially. By picking this wholly unnecessary fight, Chooseco has potentially given Netflix the ability to yank away the one poker chip it had left to play.

From the filing:

The alleged “Choose Your Own Adventure” marks that are the subject of Registration Nos. 2,913,403; 4,682,357; 5,651,588; 2,807,473; and 3,234,147 lack distinctiveness, are generic, and therefore are unprotectable. As detailed herein, the phrase “Choose Your Own Adventure” no longer denotes a single source or origin. Instead, it is a common phrase used by the general public to refer (a) to any situation that requires making a series of unguided choices, or that provides an opportunity to go back and re-make a series of choices that turned out badly, or (b) to any interactive fictional work that employs a “branching” narrative style, regardless of the source or origin of the work.

As used in the context of fictional works, the phrase “Choose Your Own Adventure” encompasses the entire genre of interactive-narrative fiction, a genus of media of which Chooseco’s book series is just one species.

Anyone really want to argue that the above isn't true? It sure seems to be. I have long known what a CYOA book was. I, until covering this story, had zero idea that there was a single company with a registered trademark behind those books. Because, really, there isn't. CYOA is essentially a genre. And somewhat descriptive. And not particularly identifying as to a source of a product.

There are legions of interactive novels, for instance, that are self-described as CYOA. And, yet, here we are in 2020, the year of our lord, first seeing legal action by Chooseco over it? Come on.

Again, I wish we saw this more often. Trademark bullies looking for a payday should more often have to at least face the risk of losing their trademarks entirely. While there is no guarantee that this will work in Netflix's favor at trial, at least this threat would deter more bullying in general.

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Filed Under: bandersnatch, black mirror, choose your own adventure, generic, trademark
Companies: chooseco, netflix


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  • icon
    Stephen T. Stone (profile), 27 Feb 2020 @ 8:26pm

    Chooseco was so eager to prove it could sue Netflix that it didn’t stop to think whether it should. And now look where it is: surrounded on all sides with nowhere to go. Maybe now would be the time to say the magic word, which is “dismiss”.

    …these Jurassic Park references doin’ anything for ya? Everyone else is gonna do the CYOA schtick, I gotta stand out somehow.

    reply to this | link to this | view in chronology ]

    • identicon
      Bobvious, 28 Feb 2020 @ 12:19am

      Re: magic word

      Don't forget "with prejudice".

      reply to this | link to this | view in chronology ]

    • identicon
      AnonyCog, 28 Feb 2020 @ 12:06pm

      Re:

      Turn to page 5, ask a judge in a courtroom who blocks your way
      Turn to page 15,run to an internet behemoth who blocks your way
      Turn to page 2, pretend everyone from the 80s remembers as the quirky nerd you are

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 27 Feb 2020 @ 8:59pm

    If you're scrambling like mad to drop the case, turn to page 24

    Ooh, looks like they made a few wrong choices and ended up at a bad end. I'd say better luck next time but if Netflix wins that particular ploy there won't be a next time.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Feb 2020 @ 9:07pm

    CYOA is essentially a genre.

    Cover Your Own Ass certainly is a genre.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 27 Feb 2020 @ 9:50pm

    Thanks to copyright

    It has become, Cover Your Own Ass.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 28 Feb 2020 @ 12:08am

    Turn to page 34 if you want to see the shareholder of ChooseCo crying.
    Turn to page 45 if you want to see the shareholder contacting other lawyers to sue his current lawyer.
    Turn to page 15 if you want to see what shows Netflix has been holding back production of until this ended.
    Turn to page 98 if you want to see Amazon ask for the advance back.
    Turn to page 37 if you know that there will still be bullies out there thinking they are smarter than the last guy & they can pull off the payday that so many others failed to obtain.

    Close the book if you are tired of how insane IP in this country has become & imagine what we could have had without these taxes on innovation stopping others from imagining what they could make.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 28 Feb 2020 @ 1:49am

      Re:

      "Close the book if you are tired of how insane IP in this country has become & imagine what we could have had without these taxes on innovation stopping others from imagining what they could make."

      "Has become"? Imaginary Property law has never been anything other than an obvious attempt to maintain the iron grip of legacy industries on markets they are unable to completely dominate in an actual competitive environment.

      you could argue that at least the principles for Trademark law is sound, but the same can't be said for the remaining spiritual successors of 15th-century catholic church blasphemy law.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Mar 2020 @ 7:51am

      Yes, but what has to happen before turning to Chapter 11?

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 3 Mar 2020 @ 3:18am

        Re: Yes, but what has to happen before turning to Chapter 11?

        "Yes, but what has to happen before turning to Chapter 11?"

        "You encounter an irate judge"
        "Judge incants a dreadful spell - "Thou shalt not conflate trademarks with patents".

        Roll 2 six-sided dice and add the number of lawyers on retainer.
        If the sum of your roll is 20 or more, start again from page 1.
        If the sum of your roll is less than 20, lose $2000 and roll again.
        If you have no money left, go to chapter 11.

        reply to this | link to this | view in chronology ]

  • icon
    Scary Devil Monastery (profile), 28 Feb 2020 @ 1:46am

    Trademark? Obvious patent abuse, more like

    Although Chooseco are wrapping this garbage in the flimsy veil of a trademark dispute over the CYOA "brand" it's fairly obvious what they're really doing is patent trolling over another company offering interactive stories.

    People keep forgetting - and, unbelievably, americans more often than most - that a "corporation" is inherently only interested in boosting shareholder interests. If the law would allow a corporation to force everyone to pay them for the privilege of breathing then numerous corporations would be aiming for that angle.

    Copyrights and patents, most notably, are literally built with abuse in mind and original intent, but as this case proves even trademark law is wide enough to accommodate extortion as a viable business model.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Feb 2020 @ 3:04am

    Choose your potential victims wisely

    This reminds me of those who stood up to copyright trolling.

    Hey trolls (copyright, trademark, patents), choose (your own adventure) wisely else you get seriously burnt.

    reply to this | link to this | view in chronology ]

  • icon
    TasMot (profile), 28 Feb 2020 @ 5:56am

    OK everybody, now's the time to find out where to send prior art for Netflix to use at trial to show that the trademark should never have been granted in the first place.

    reply to this | link to this | view in chronology ]

    • identicon
      Valkor, 28 Feb 2020 @ 12:11pm

      Re:

      Sounds fun, but prior art is for patents, not trademarks.

      reply to this | link to this | view in chronology ]

      • icon
        Tanner Andrews (profile), 1 Mar 2020 @ 10:18am

        Re: Re: [silly rabbit, prior art is for patents]

        prior art is for patents, not trademarks

        Right. For trademark to be lost as generic, the references need not be prior at all. If people are presently using an already-granted trademark in a generic sense, e.g. "escalator" or "aspirin", then the trademark is surely lost.

        And, if someone is actively choosing "markdown" instead of "html", may all their quotes be ugly and/or mangled.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Feb 2020 @ 7:35am

    Those indie game threats? Those go away if Chooseco doesn't have a trademark to wield.

    Right, because it's well known that nobody files lawsuits they have no chance of winning, just to intimidate people.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 28 Feb 2020 @ 10:59am

      Courts tend to frown on people who do that.

      Corporations are not exempt from that contempt.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 28 Feb 2020 @ 12:12pm

        Nunes' lawyer would like to have a word with you

        Getting frowned at doesn't really have much impact if that's all the happens, and as many articles have made clear that usually is all that happens unless the side being frowned upon went above and beyond and basically repeatedly slapped the judge in the face and dared them to respond.

        reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 28 Feb 2020 @ 11:04am

    There's an old issue of the 1990s Ren & Stimpy comic that describes itself as a "choose your own adventure" epic on its cover. I'm not aware of Marvel or Nickelodeon licensing the trademark or Chooseco attempting to enforce it at that time.

    Seems like that would be a useful bit of evidence. Is there any way to pass it along to Netflix's representation?

    reply to this | link to this | view in chronology ]

  • icon
    Avantare (profile), 28 Feb 2020 @ 1:54pm

    Svaing games during a game

    it is a common phrase used by the general public to refer (a) to any situation that requires making a series of unguided choices, or that provides an opportunity to go back and re-make a series of choices that turned out badly.

    I've been doing that with saving games on a computer since, well, the early 90's.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 28 Feb 2020 @ 5:01pm

    Who wants to bet that Netflix will eventually file for a trademark of its own of some type to cover online CYOA programs?

    Personally, I hope the idea of interactive programming doesn't catch on. Anyone who doesn't have Netflix is never going to see Bandersnatch, at least not in the CYOA format. I suppose it would be possible to do on a DVD/BR player, but probably not as smoothly as online and I've seen no mention of such a release. A computer could do it, but I highly doubt they will release a computer version of it. Which also means that It will become a "lost episode" of the show in the future.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2020 @ 8:08am

      Re:

      "Scourge of Worlds" was a Dungeons and Dragons adventure on DVD. It was full of "oh no we died" moments and was very much a DVD implementation of the CYOA format. I don't know if they made any others.

      reply to this | link to this | view in chronology ]

  • icon
    Avatar28 (profile), 28 Feb 2020 @ 6:26pm

    One more benefit for Netflix

    By putting this on the table it raises the stakes for Chooseco if they choose to go through with this. They can continue the lawsuit and risk losing their trademark or they can settle out of court or dismiss the lawsuit entirely and their trademark, however questionable, is still intact for now.

    reply to this | link to this | view in chronology ]

  • icon
    catsmoke (profile), 29 Feb 2020 @ 10:36pm

    Chose His Owned Ad Venture

    As a reader who purchased Choose Your Own Adventure books soon after their first publication, and who was undoubtedly in the publisher’s target demographic, and as someone who has had a lifelong communion with American books and publishing, I must say that my perception and understanding of Choose Your Own Adventure has been, since the late 1970s, that the phrase was specific to one book series by one publisher, and a product that, in my experience, always had the features of a distinct, consistent marketing design.

    There were imitators, over the years, and the idea of letting the reader continue along chosen branches of a narrative path is a basic idea.

    And to my recall, the expression “choose your own adventure” rarely is found in pop culture sources. It is more of a scarcely-found in-joke than a universal meme.

    I’m personally dead-set opposed to the tactics used by “[t]rademark bullies looking for a payday” and I wholeheartedly agree that those bullies “should more often have to at least face the risk of losing their trademarks entirely.”

    “Intellectual property” is an oxymoron. Private property is a bane of mankind. Nevertheless, in my world, the idea of Choose Your Own Adventure has never had a generic or recurring general meaning. The concept is simple, and has been imitated, but that phrase and the trappings and livery of the original book series are a cultural artifact that is discrete, unique, and distinct.

    reply to this | link to this | view in chronology ]

    • icon
      catsmoke (profile), 29 Feb 2020 @ 10:54pm

      Re: Chose His Owned Ad Venture

      I’ll also add that the books are, without fail, letdowns. The works usually feature imaginative, detailed setups, without any well-developed conclusions, no matter the choices made by the reader. Incongruous diabolus ex machina endings litter every volume: Aliens are prone to appear, to kidnap the protagonist and instantly quash the story, in any time, place, or setting. The worlds of the narratives are internally inconsistent: An important element of the setting (for example, in its world, is magic real?) may fluctuate between different states, from page to page. As a whole, the books have little artistic merit. They are poorly-thought-out failures, especially in the wildly varying tones of their varying narrative branches, in which one “choice” leads to a conclusion which is an absurd joke, and its alternative “choice” leads to a grim death.

      I do not recommend the series. It may serve a critical young reader as fodder for analysis of a promising concept which never fulfills its potential. Otherwise, it is best avoided.

      reply to this | link to this | view in chronology ]


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