The ever growing streaming platform Netflix, has a become an entertainment hydra with many heads that include stand-up comedy, original series, and even original feature films. But in late December, the hydra sprout a head that if removed, sadly will probably not be growing back, choose-your-own adventure feature films. The sword that will be used to cut this head off will be Trademark Law, as Chooseco owner of the trademarked term,”Choose-your-own-adventure,” is suing Netflix for the use of the term in the film Black Mirror: Bandersnatch and the use of the process.
Bandersnatch, the culmination of the Sci-fi series Black Mirror, is lauded for its sharp portrayal of social and technological commentary. It is a warped and bombastic but very insightful exhibition of the cultural zeitgeist and the way technology leaves its metaphysical and sometimes physical imprint on us.
So what’s the issue?
Essentially, a trademark is a source indicator, it is meant to show where a certain good or service comes from, if distinguishable enough. In simple terms, this means a brand. In the market for goods and services, a brand is everything which is why companies guard it with their (fiscal) life. A brand (mark) allows for a relationship with the average consumer and if successful helps build goodwill which is why companies are so covetous over it. Goodwill is synonymous with trust in a brand. This goodwill is what Chooseco. is claiming to be at stake. This is due to the violence and drug use exhibited in the film and Chooseco Prides itself in being a children’s book publisher.
In order to survive, Netflix will put through the ‘likelihood of confusion’ test, a way the law tries to predict and protect consumers by screening the trademark and proving a distinctiveness in their use of the term. Basically, the test gauges sight, sound, and the likeliness of the mark to deceive the consumer.
If you ask this reporter, it seems like a slam dunk case due simply to the lack of a licensing agreement existing to use the term in the first place.Summoning an analogy used earlier, hopefully Bandersnatch becomes Netflix’s sword of damocles, reminding it of the power that comes with being a leviathan of media, the fear of the incoming lawsuits. _____________________________________________________________________