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After being hit with a lawsuit over a Black Mirror episode’s relationship to the “Choose Your Own Adventure” phrase, a term trademarked by book publisher Chooseco, Netflix is asking a court to revoke the company’s trademark on what it says is a generic term.
The Hollywood Reporter spotted the latest evolution of the dispute this week, in which Netflix argues that the phrase has become generic over the years and that it calls to mind a genre of interactive adventures rather than Chooseco’s exact brand of branching books.
“The phrase 'Choose Your Own Adventure' has become generic in its current use within the United States. In contemporary parlance, any situation that requires making a series of unguided choices, or that provides an opportunity to go back and re-make a series of choices that turned out badly, is referred to as a 'Choose Your Own Adventure’,” argues Netflix’s counsel. “Thus, in its current usage, the phrase 'Choose Your Own Adventure' encompasses the entire genre of interactive-narrative fiction, a genus of media of which Chooseco’s book series is just one species."
In a similar vein, Chooseco has gone up against indie developers in the past for using Choose Your Own Adventure as a seemingly generic term to describe their games in which players are given the ability to make choices that direct characters down diverging paths.
One recent case saw Itch.io founder Leaf Corcoran tweeting a warning to indie developers that “choose your own adventure” was a trademarked term, and that Chooseco has issued takedown notices to itch.io games that use it to describe their titles.
The Netflix part of the CYOA debacle kicked off last year when Chooseco took Netflix to court over the Black Mirror episode Bandersnatch, an interactive episode that allows Netflix viewers to make moment-to-moment decisions that ultimately steer the direction of the on-screen story. Chooseco opted to sue the company in January 2019 for trademark infringement, pointing out similarities to its own series structure and an in-episode reference to a Choose Your Own Adventure book alongside the claim that it had previously discussed a licensing deal with Netflix in the past.
Netflix moved to have the case dismissed earlier this year, but the request was denied. In this latest development, Netflix confirms there were talks of a potential licensing deal earlier on, but argues that those discussions weren’t related to Bandersnatch.
Alongside the argument that “Choose Your Own Adventure” has become a generic term, Netflix also suggests the structure of Bandersnatch’s narrative twists and turns have a fundamental difference from Chooseco’s novels as viewers are tasked with directing a protagonist from the outside rather than assuming the role of the protagonist themselves.