Posted: March 18th, 2019
By: Melissa Lawrence
Chooseco, maker of the “Choose Your Own Adventure” books popular in the 1980s and 1990s, sued Netflix over its interactive adult film Black Mirror: Bandersnatch. Chooseco’s lawsuit concerns Netflix’s use of its trademark “Choose Your Own Adventure,” a mark registered both in the United States and internationally. In its complaint, Chooseco demands both injunctive relief and damages in the amount of $25 million or Netflix’s profits from the film, whichever are greater.
Bandersnatch is an interactive film that allows viewers to select one of alternative paths at major turning points throughout the story. This interactive concept is similar to the format of the Chooseco books, which allow readers to choose their own plot line by flipping to different pages in the book. The film chronicles the story of a programmer, Stefan Butler, who designs a video game based on a book similar to Chooseco’s “Choose Your Own Adventure” novels. In one scene, Butler explains the book is a “Choose Your Own Adventure” book. Netflix even provides subtitles that flash “Choose Your Own Adventure” in quotation marks and capital letters, clearly referencing Chooseco’s brand. This use of the phrase without a license or other authorization prompted Chooseco to sue Netflix for trademark infringement, unfair competition, false designation of origin, and dilution. Chooseco claims that Netflix willfully and intentionally misappropriated the mark to capitalize on its viewers’ nostalgia for its “Choose Your Own Adventure” books. It also alleges that the film’s dark and mature content harms the reputation and the goodwill its trademark enjoys.
Regardless of the lawsuit’s outcome however, the single utterance of “Choose Your Own Adventure” in Bandersnatch presents a larger problem for the book publisher — “genericide.” A trademark becomes generic when the public ceases to recognize the trademark as representing a source provider and begins to refer to a particular good or service by its trademark.Such was the fate of former trademarks such as Trampoline and Aspirin (see list of “genericized” marks here). As such, Chooseco’s biggest threat now comes from the consuming public.
Media coverage of Bandersnatchsuggests the “genericization” of the “Choose Your Own Adventure” trademark has already begun. Thanks to Netflix’s single reference to the trademark, media companies, such as USA Today, NPR, Buzzfeed, The Atlantic, and TV Guide, began referring to the film as a choose your own adventure film immediately upon its release.
Should the trademark “Choose Your Own Adventure” become generic, Chooseco would lose its right to exclusive use of the mark. Such an effect would be devastating for Chooseco. It currently uses its trademark strategically in its marketing to appeal to its audience of the 80s and 90s, who remember the brand with “pleasant nostalgia from their youth” and buy the books for their own children. Chooseco also profits from the trademark by distributing licenses for its use to companies, such as Twentieth Century Fox and Z-Man games, who seek to make their own “Choose Your Own Adventure” films and games. More recently, Chooseco granted a license to Amazon’s Audible division for an Alexa-narrated “Choose Your Own Adventure” series.
Like other companies who face the genericization of a trademark, Chooseco will need to vigorously remind the public that it is the sole owner and provider of the “Choose Your Own Adventure” trademark and books. Hopefully, Chooseco can capitalize on the free publicity Bandersnatch and its lawsuit have created to do just that.
Melissa Lawrence is a second-year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in Music from Converse College and a Master of Arts in History from Mississippi State University. Upon graduation, she intends to practice business and intellectual property law.