Netflix chooses its own judgment in 'Bandersnatch' case: Settle and make the nasty lawsuit go away
- Reference: 1606399807
- News link: https://www.theregister.co.uk/2020/11/26/netflix_bandersnatch_settlement/
- Source link:
At the heart of the case was the interactive episode of the Black Mirror TV series: "Bandersnatch".
[1]Youtube Video
Written by Charlie Brooker, the episode squeaked in at the end of 2018 with little fanfare and allowed viewers to make decisions for the main character, tasked with adapting a fantasy book into a video game. There are multiple paths through the episode's narrative and numerous possible endings.
Those of a certain age might recall the "Choose Your Own Adventure" books of the 1980s and 1990s, where the reader must make decisions to drive the plot forward and turn to a numbered page hoping that things are not about to go horribly wrong for the fictional character. The trademark is now owned by Chooseco LLC, who felt that Netflix's take was a little too close to home and [2]lobbed the inevitable sueball (you can read a PDF of the original complaint [3]here ) back in January 2019 in the United States District Court for the District of Vermont.
The protagonist in Bandersnatch even went so far as to refer to the book on which his game is based as a "choose-your-own-adventure", but Netflix defended it as a common phrase. Chooseco also complained that the dark content of Netflix's fare [4]was at odds with the tone of its own, relaunched, books.
Those lawyers preparing themselves for a fee-based choose-your-own-adventure (option 1: service the Ferrari, option 2: service the Porsche) were, however, to be disappointed. A third option was to go for a settlement, which is exactly what Netflix did this week. The monetary terms have not been disclosed.
MongoDB loses its mind with marketing budget movie mania: Yep, it's choose-your-own-adventure Hackers with drop-down menus [5]READ MORE
A judge in February this year refused to dismiss the lawsuit, indicating that there might well be a chance of consumer confusion over the method of interaction. Rather than fight on, it appears Netflix has done whatever was needed to make the sueball go away. Both parties, however, requested that the February ruling that sent the case to trial [6]be vacated .
The Register has contacted both Netflix and Chooseco and will update if either responds with more detail. ®
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[1] https://www.youtube.com/watch?v=7wnRi3Sclm8
[2] https://www.theregister.com/2019/03/22/netflix_bandersnatch_lawsuit/
[3] https://regmedia.co.uk/2020/11/26/complaint_netflix_vs_chooseco.pdf
[4] https://www.forbes.com/sites/michellefabio/2019/01/14/chooseco-choose-your-own-adventure-trademark-owner-sues-netflix-over-bandersnatch/
[5] https://www.theregister.com/2020/11/25/mongodb_marketing_movie_dross/
[6] https://www.law360.com/ip/articles/1332015
[7] https://whitepapers.theregister.com/
Re: Trademarking the idea rather than the name
The article claims that the episode used the term "Choose your own adventure". So court arguments would boil down to whether that's become a generic term (Petrol, Hoover, Xerox, etc.).
But this is an out-of-court settlement, so the point hasn't been tested. And we don't know (and may never know) what the settlement was. It could be anything from Netlflix getting rinsed, to Chooseco agreeing to go away and not bother them again.
So there's been no extension of trademarks, as nothing's been tested in court.
Re: Trademarking the idea rather than the name
"Choose your own adventure" is an obviously descriptive sentence, it should never have been granted a trademark (except maybe with a specific typesetting).
But it will generally be cheaper, and less hassle, to settle...
Re: Trademarking the idea rather than the name
In practice they could use Netflix settling to bully others to settle out of court was what I meant. Yes, I would have liked to have seen their attempt crushed properly so that it can't be tried again.
I take the point that we don't know who actually folded.
Was the phrase referred to in the dialogue, or did they say that 'this episode is a...?' There has to be a difference.
Oh how I loved them as a kid
Was it Steve Jackson that wrote a lot of them?
Two dice, a pencil and a bookmark were all that was required!
Re: Oh how I loved them as a kid
Steve Jackson and Ian Livingstone.
I'm sat here with the 25th Anniversary Edition in front of me. The publishing details claim it was first published in 1982
Trademarking the idea rather than the name
That's a huge extension of trademarks isn't it?
Now the trolls have been emboldened by Netflix blinking first, what's to stop them going after all those pointy-clicky computer games? They might find it tricky though, [1]Colossal Cave Adventure published the same year as the first [2]Choose Your Own Adventure. (Not that it was mouse driven, but it expressed the same concept.)
They are the troll, not me.
[1] https://en.wikipedia.org/wiki/Colossal_Cave_Adventure
[2] https://en.wikipedia.org/wiki/Choose_Your_Own_Adventure