On Tuesday, Netflix lost a bid to escape a lawsuit brought by the trademark owner of “Choose Your Own Adventure” over the 2018 immersive film Black Mirror: Bandersnatch. The series’ original publisher, Chooseco, sued the company early last year for $25 million in damages, as the company says that Netflix’s new movie benefits from association with the Choose Your Own Adventure series, without the company ever receiving the trademark. From Hollywood Reporter: According to the plaintiff, it has been using the mark since the 1980s and has sold more than 265 million copies of its Choose Your Own Adventure books. 20th Century Fox holds options for movie versions, and Chooseco alleges that Netflix actively pursued a license. Instead of getting one, Netflix released Bandersnatch, which allows audiences to select the direction of the plot. Claiming $25 million in damages, Chooseco suggested that Bandersnatch viewers have been confused about association with its famous brand, particularly because of marketing around the movie as well as a scene where the main character — a video game developer — tells his father that the work he’s developing is based on a Choose Your Own Adventure book.
In reaction to the lawsuit, Netflix raised a First Amendment defense, particularly the balancing test in Rogers v. Grimaldi, whereby unless a work has no artistic relevance, the use of a mark must be misleading for it to be actionable. U.S. District Court Judge William Sessions agrees that Bandersnatch is an artistic work even if Netflix derived profit from exploiting the Charlie Brooker film. And the judge says that use of the trademark has artistic relevance. Thus, the final question is whether Netflix’s film is explicitly misleading. Judge Sessions doesn’t believe it’s appropriate to dismiss the case prematurely without exploring factual issues in discovery. Netflix also attempted to defend its use of “Choose Your Own Adventure” as descriptive fair use. Here, too, the judge believes that factual exploration is appropriate. You can read the full decision here.
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