• by Wendy Davis  @wendyndavis, March 22, 2019

Netflix is asking a federal judge to dismiss a lawsuit alleging that the interactive show “Black Mirror: Bandersnatch” infringes the trademark of Chooseco, which publishes the “Choose Your Own Adventure” books.

Netflix argues in court papers filed Thursday that its show is protected by free speech principles, and that the program doesn't dupe viewers into believing there's an association between itself and Chooseco.

“There is no plausible case of consumer confusion,” Netflix argues in court papers filed with U.S. District Court Judge William Sessions III in Burlington, Vermont. “Nor is there anything in Bandersnatch that could support a plausible theory of consumer confusion. The film’s opening credits and its marketing both prominently display Netflix’s own trademark and identify the film as a part of Netflix’s well-known Black Mirror anthology -- including in the title of the film, Black Mirror: Bandersnatch.”

The company's papers come in response to a lawsuit filed earlier this year by Chooseco, which alleged that Netflix drew on the “Choose Your Own Adventure” books to benefit from nostalgia for the series.

Netflix's interactive show featured a character who referred to a fictional book, Bandersnatch, which he described as a “Choose Your Own Adventure” book. Books in that children's series -- popular in the 1980s and 1990s -- allow readers to decide the outcome of the story.

Netflix argues in its new papers that the use of the phrase “choose your own adventure” is legal, given the context.

“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,” Netflix writes. “Because the use at issue does not identify the source of the film or the streaming service, and is instead used within the film 'to entertain' or 'to comment and entertain,' it is protected.”

Netflix also says that fair use principles allow the company to use the phrase “choose your own adventure” to describe the show's format.

Chooseco “cannot -- under any legal theory -- prevent Netflix from referring to a 'Choose Your Own Adventure' book in a descriptive sense -- in other words, to describe the branching storytelling technique used in the fictitious book 'Bandersnatch,'” the video company writes.