Siding against Netflix, a federal judge on Tuesday refused to dismiss claims that the interactive video show “Black Mirror: Bandersnatch” infringed the trademark of Chooseco -- publisher of the “Choose Your Own Adventure” book 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.
Chooseco alleged in a lawsuit brought last year that Netflix used the wording “choose your own adventure” in order to benefit from nostalgia for the series, and that the phrase gives viewers the impression that the streaming video show is affiliated with the books.
Chooseco also alleged that Netflix attempted to license the phrase, but wasn't able to agree on terms. Netflix subsequently began using the expression without a license.
Netflix countered that its program, including the use of the words “choose your own adventure,” is protected by free speech principles, and asked U.S. District Court Judge William Sessions III in Vermont to dismiss the case at an early stage.
Among other arguments, the streaming video company said the phrase merely describes the show's interactive format.
Sessions rejected Netflix's request -- at least for now. He said he needs more evidence to evaluate Netflix's argument that its use of the phrase was protected by free speech concepts.
“The court lacks the facts necessary to determine whether consumers perceive the phrase in a descriptive sense or whether they simply associate it with Chooseco’s brand,” Sessions wrote in a 30-ruling that allows Chooseco to proceed with its claims.
“Chooseco has pleaded sufficient factual allegations indicating that it is at least plausible Netflix used Choose Your Own Adventure ... in bad faith,” he wrote, adding that Netflix's unsuccessful attempt to license the phrase could support the argument that it aimed to benefit from the “the good will of Chooseco’s brand.”