Netflix Pushing for Judge to Dismiss ‘Choose Your Own Adventure’ Lawsuit

Netflix is requesting that a federal judge dismiss a trademark lawsuit over their film Black Mirror: Bandersnatch filed by the creators of the Choose Your Own Adventure book series in January.

On Thursday, Netflix asked a judge to throw out a lawsuit filed by Chooseco LLC asking for at least $25 million in damages following the December release of Bandersnatch, which the Vermont-based publisher claims infringes on its trademarks. According to the streaming service, however, Chooseco LLC’s claims hold no merit.

“The idea of a narrative storytelling device in which readers or viewers make their own choices is not protected by trademark law,” Netflix attorneys at Ballard Spahr, who point to the seminal case, Rogers v. Grimaldi, argue in the dismissal, The Hollywood Reporter reports.

“Here, the phrase ‘Choose Your Own Adventure’ is artistically relevant to the film because its plot involves the protagonist’s efforts to convert the book Bandersnatch into a videogame, and the storytelling structure of the film mirrors the fictional storytelling structure of the book and videogame,” the dismissal states. “Where, as here, the complaint fails to plead any plausible theory of consumer confusion, much less a ‘particularly compelling’ case, dismissal is warranted.”

“Even accepting that (dubious) interpretation of what the reference to ‘Choose Your Own Adventure’ was intended to accomplish, a party does not have the right to prevent its trademark from being used to evoke nostalgia or situate a narrative within a particular time and place,” it adds.

In Chooseco’s own lawsuit, it had been alleged that while the publisher and Netflix had “extensive negotiations” in regards to licensing, they never reached a deal, though the streaming service claims that “Chooseco does not, and cannot, allege that these licensing negotiations concerned Bandersnatch.”

“In any event, that Netflix may have been aware of Chooseco’s trademark does not mean that, in using the phrase ‘Choose Your Own Adventure’ in Bandersnatch‘s dialogue, Netflix ‘acted with the intent relevant in trademark cases — that is, an intent to capitalize on consumer deception or hitch a free ride on plaintiff’s good will,” the dismissal reads. “Rather, the use is evidence only of what is plain on the face of the film — that it explores the Choose Your Own Adventure idea. Because such a use is necessarily lawful, even a knowing use is not evidence of bad faith.”

The dismissal brief concludes by stating that the plaintiff, Chooseco, has failed to plead consumer confusion.

Black Mirror: Bandersnatch is currently available for streaming on Netflix.