Netflix has taken an aggressive step in its fight with publishing company Chooseco. It’s asking a court to cancel the Choose Your Own Adventure trademark, arguing that it’s a generic descriptor rather than a meaningful brand.
Last year, the Netflix got into hot water with its previous interactive show Black Mirror: Bandersnatch. Chooseco filed an infringement lawsuit against the company for using the phrase “choose your own adventure” in the Bandersnatch script. Chooseco claimed that that use violated its Choose Your Own Adventure trademark.
Netflix’s initial defense was to ask the court to dismiss the case because it did not meet the standards set by the Lanham Act. The judge agreed that Bandersnatch was an expressive work and that the use of the phrase had relevance to the artistic work. However, Chooseco also alleged the use of the trademark could confuse consumers into thinking the film was related to the company. The judge agreed and denied dismissal.
“The physical characteristics and context of the use demonstrate that it is at least plausible Netflix used the term to attract public attention by associating the film with Chooseco’s book series,” wrote Vermont federal judge William Sessions in his opinion.
The response argues that Netflix didn’t stylistically copy the Choose Your Own Adventure book covers or overtly reference the series. But it also makes a counterclaim: that Chooseco can no longer control the term, the way that you can’t be sued for selling generic aspirin or a thermos. “In contemporary parlance, 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, is referred to as a ‘Choose Your Own Adventure,’” it reads. It cites judges casually using the term in rulings, as well as a wealth of interactive fiction that’s described as “choose your own adventure” for its branching structure.
Chooseco has been trying to prevent this outcome for years. It’s filed suits against other big companies, including Chrysler, for using the phrase. But it’s also gone after small, obscure indie games that might dilute its trademark. Some publishers have gone to deliberately ridiculous extents to avoid using the term, like calling their book a “Select Your Own Choose-Venture” story.
