back to article Netflix chooses its own judgment in 'Bandersnatch' case: Settle and make the nasty lawsuit go away

Streaming giant Netflix has agreed to settle a lawsuit over the trademark rights to the "Choose Your Own Adventure" series of books. At the heart of the case was the interactive episode of the Black Mirror TV series: "Bandersnatch". Youtube Video Written by Charlie Brooker, the episode squeaked in at the end of 2018 with …

  1. Greybearded old scrote Silver badge
    Trollface

    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, Colossal Cave Adventure published the same year as the first Choose Your Own Adventure. (Not that it was mouse driven, but it expressed the same concept.)

    They are the troll, not me.

    1. Anonymous Coward
      Anonymous Coward

      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.

      1. John Robson Silver badge

        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...

        1. Robert Carnegie Silver badge

          Re: Trademarking the idea rather than the name

          The name isn't absolutely generic and "Black Mirror" did use it.

          Wikipedia and TV Tropes Web sites use "gamebook" as the generic term. Wikipedia says that "Gamebooks are sometimes called choose your own adventure books or CYOA after the influential Choose Your Own Adventure series originally published by US company Bantam Books" - not the only brand, much imitated - and that "When Bantam, now owned by Random House, allowed the Choose Your Own Adventure trademark to lapse, the series was relaunched by Chooseco, which now owns the trademark." It occurs to me that "Random House" could be the title of one of these books, but for mainly legal reasons I expect it isn't.

          1. Anonymous Coward
            Anonymous Coward

            Re: Trademarking the idea rather than the name

            True, but the trademark would have applied in the context of a book, not a movie or TV show. Much like there are Apple computers, Apple records, and apples.

            I guess the financial settlement was low. I doubt that they'd have won much going to court - it was probably one of those "fight for your trademark or lose it" battles.

            1. Anonymous Coward
              Anonymous Coward

              Re: Trademarking the idea rather than the name

              "True, but the trademark would have applied in the context of a book, not a movie or TV show. Much like there are Apple computers, Apple records, and apples."

              This is a spectacularly poor example. Apple vs Apple happened when Apple (Jobs) launched iTunes and Apple (Beatles) felt it was too close to music.

              There was a court case.

              So if this is supposed to be an example of how similarly named things never overlap.... Choose another.

          2. John Robson Silver badge

            Re: Trademarking the idea rather than the name

            "Wikipedia and TV Tropes Web sites use "gamebook" as the generic term."

            Literally never heard them referred to as a gamebook.

            Don't know what the ones I used to read as a kid where, but the "choose your own adventure" sentence is completely descriptive and I knew what it was and was transported back to the school library in an instant.

            But more important is:

            "When Bantam, now owned by Random House, allowed the Choose Your Own Adventure trademark to lapse..."

            That's it - trademark dead. There should be no reviving the mark by another company.

            1. Robert Carnegie Silver badge

              Re: Trademarking the idea rather than the name

              Hardly so. British eggs are stamped with a lion logo (tricky work) which presumably used to represent the Roman Colosseum, and there also is a Red Tractor mark which must have belonged previously to the Communist revolution but was no longer in use.

              Wikipedia may be wrong anyway: perhaps the trademark didn't lapse but was sold?

              1. John Robson Silver badge

                Re: Trademarking the idea rather than the name

                Independent reuse of a trademark is rather different from what amounts to squatting.

                Quite aware that wikipedia may be wrong, but the lawsuit really doesn't bother me enough to actually research the minutia of the case.

                If Adobe went of business and the authors of GIMP registered photoshop as a trademark when it lapsed I'd consider that to be equally broken.

                1. Robert Carnegie Silver badge
                  Joke

                  Re: Trademarking the idea rather than the name

                  "GIMP Is My Photoshop"? :-)

      2. Greybearded old scrote Silver badge

        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.

    2. juice Silver badge

      Re: Trademarking the idea rather than the name

      > That's a huge extension of trademarks isn't it?

      You could maybe argue that there's parallels with Nintendo and Donkey Kong; they were sued by Universal over the similarities to King Kong, that case was thrown out of court when Nintendo's lawyer pointed out that the copyright for King Kong had lapsed decades earlier, and wasn't even owned by Universal at the time.

      (Exact details may vary. It's Monday and caffeine levels are low. And that was around copyright, not trademarks. Etc)

      However, this article misses out one key point, which I suspect may have been a significant factor in Netflix settling.

      https://en.wikipedia.org/wiki/Black_Mirror:_Bandersnatch#Lawsuit

      Chooseco claimed it trademarked the phrase in association with movies, books, and other forms of media, and that Netflix started negotiations with Chooseco in 2016 to license the phrase for films and animated series, which did not pan out

      It's one thing to argue that a trademark/copyright has lapsed and/or become a generic term (e.g. "answerphone"). But it's a bit harder to argue that when you previously tried to buy the rights to said trademark!

      So I doubt that Chooseco are going to try and go for anyone else, since they'll have a much weaker case.

  2. Dabooka

    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!

    1. John G Imrie
      Happy

      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

      1. William Towle

        Re: Oh how I loved them as a kid

        > I'm sat here with the 25th Anniversary Edition in front of me. The publishing details claim it was first published in 1982

        Nod, and apparently the series went on to sell 17 million copies in 30 different languages.

        Recent Archive on 4 broadcast refers, at https://www.bbc.co.uk/programmes/b071h083

        (Thanks for the reminder, I needed an excuse to revisit the page...)

    2. Anonymous Coward
      Anonymous Coward

      Re: Oh how I loved them as a kid

      You're thinking of the Fighting Fantasy gamebooks. Similar concept, but they never used the phrase "Choose Your Own Adventure" which is what's causing the trouble here.

      But practically everybody I knew called them "Choose your own adventure" books so yeah, I'd say it was genericised over 25 years ago...

      1. Anonymous Coward
        Anonymous Coward

        Re: Oh how I loved them as a kid

        It's still a registered trademark. Unless they want to lose it, the owners have to actively protect it.

  3. Anonymous Coward
    Anonymous Coward

    Not really new or unique.

    The concept of "Choose Your Own Adventure" has been a reality since 1 caveman went North and another went South, in video or otherwise. On the other hand, this lawsuit was inevitable as there is a Caveman Lawyer (Phil Hartman).

    What kind of _______ the line is "Mad Libs", where you kind of _______ your own _______, but kind of don't at the same _______.

    1. Anonymous Coward
      Anonymous Coward

      Re: Not really new or unique.

      Ultimately the US business model of breaking laws now and paying out once you have made cash from your raid has again won through, yet again.

      IMHO Netflix knew that they would end up paying for this out but the punitive cost of stamping on the little guy is unlikley to stop them doing it over and again.

      Thus in the US if you have enough money you can do what you like

      1. beep54

        Re: Not really new or unique.

        "Thus in the US if you have enough money you can do what you like"

        Actually, in the US at least, you don't even have to HAVE the money as long as you can convince the right people that perhaps you DO have the money [see: D. Trump]. I have long considered 'money' to be a consensual hallucination that will never go away.

        1. Anonymous Coward
          Anonymous Coward

          Re: Not really new or unique.

          Money = other people's time

          When the COVID thing plays out then they are going to have to make all the missing "other peoples time" reappear, showing that there is never any real lack of money just people who already have a lot insisting that everyone else has less.

    2. Anonymous Coward
      Anonymous Coward

      Re: Not really new or unique.

      Trademarks do not need to be novel, just registered appropriately.

      Almost certainly this is a glorified example of "if you don't actively protect your trademark, you lose it". I imagine the payment from Netflix to use the trademark was very low. The truth doesn't make a good Reg click-bait headline though.

  4. andy gibson

    Why be jerks about it? I'd not thought about my (probably long lost) CYOA books for years and being reminded about them in Black Mirror would have sent me to Ebay or Amazon to relive my childhood again like I do with Usborne books of the early 80s and generate them some cash on buying some new ones.

    Incidentally the famous Usborne Ghosts book tie in with Inside No. 9 writers has been a big success.

    1. MrMerrymaker

      Not saying I agree with the way it is, but basically, it's still a trademark, and if they want to keep it a trademark and non-generic they basically have to fight the unauthorised use of their property.

      While it may be a generic term to you, and I don't exactly disagree, this is very basic copyright protection behaviour.

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