Netflix has hit back at a lawsuit from the publisher of the popular Choose Your Own Adventure kids book series, which sued the streaming giant over what it claims are similarities found in Netlfix’s Black Mirror stand-alone interactive movie Bandersnatch.
The original civil suit, filed in federal district court in Vermont, home to the publisher Chooseco, says Black Mirror: Bandersnatch infringed on its trademark. In the film, the protagonist, a young programmer named Stefan (Fionn Whitehead), works to create a computer game inspired by by a “choose your own adventure”-style novel given to him as a child.
The suit also claimed unfair competition, false designation of origin, and dilution arising under the Trademark Act, and unfair competition.
Chooseco, which has since filed an amended complaint, says it has registered the use of the phrase in connection with movies, books and other forms of media; 20th Century Fox currently holds an option to develop a film based on the books. The publisher also claims the game company depicted in the movie, Tuckersoft, uses “rounded color borders” on its packaging that is similar to borders it uses on its book covers.
Netflix in a filing Thursday pushed back on both claims in a memorandum of law in support of a motion to dismiss (read it here), saying the use of the phrase “choose your own adventure” is “a reference to the book’s narrative device,” and is a “common — and accurate — phrase.”
The filing added that the “rounded borders” claim “is even weaker than Chooseco’s original claims: because there is nothing distinctive about Chooseco’s borders and consumers do not associate them with Chooseco, they are not protectable trade dress, and, regardless, its borders are markedly different from those used on “Tuckersoft” videogames.”
For those reasons laid out, Netflix asked for the case to be dismissed with prejudice.
“No amount of further amendment will change Bandersnatch’s actual uses of the phrase “Choose Your Own Adventure,” the filing concludes. “Nor will amendment change the fictional ‘Tuckersoft’ company’s uses of the rounded color borders, let alone make them similar to Chooseco’s. Nor will amendment alter the First Amendment protection for such artistic uses, the protection for descriptive fair uses like the use of the challenged phrase, or the absence of any secondary meaning for the rounded color borders element of Chooseco’s trade dress.”
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