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Adventure Series Book Publisher Sues Netflix Over Trademark

STEVE INSKEEP, HOST:

You know what they say about your favorite movie. No matter how many times you watch, it always ends the same. That is not true for one episode of the Netflix show "Black Mirror." An episode called "Bandersnatch" lets viewers make decisions for the main character. The format reminds some people of the "Choose Your Own Adventure" book series. And that prompted "Choose Your Own Adventure's" publisher to choose this adventure; they chose to sue. Here's Alexi Horowitz-Ghazi of NPR's Planet Money podcast.

ALEXI HOROWITZ-GHAZI, BYLINE: "Choose Your Own Adventure" books are what people often point to when trying to explain the concept of interactive narrative. The series sold more than 250 million copies over its heyday in the 1980s and 1990s. Its popularity waned, but the fanfare around Netflix's "Bandersnatch" has signaled a new hope for the interactive genre. Shannon Gilligan is the CEO and publisher of Chooseco, the company that currently publishes the "Choose Your Own Adventure" books and is suing Netflix. Even she sees "Bandersnatch" as a turning point for the interactive narrative market.

SHANNON GILLIGAN: I think that we are seeing the beginning of a new genre in streaming and in theatrical release.

HOROWITZ-GHAZI: So why is the small publisher of the "Choose Your Own Adventure" books suing the company that could help jumpstart the market for interactive content?

GILLIGAN: We simply want to protect our trademark.

HOROWITZ-GHAZI: "Bandersnatch" tells the dark and sometimes gruesome story of a teenage programmer as he works to adapt a fictional book, called "Bandersnatch," into a video game with multiple branching plotlines. Chooseco's lawsuit evolved out of this scene.

(SOUNDBITE OF FILM, "BANDERSNATCH")

WILL POULTER: (As Colin) It's a "Choose Your Own Adventure" book. You decide what your character does. They're like a game.

HOROWITZ-GHAZI: That is the moment Chooseco claims that Netflix ran afoul of their trademark. Chooseco's suit claims that Netflix's use of the phrase "Choose Your Own Adventure" causes confusion for viewers about whether or not "Bandersnatch" is affiliated with Chooseco's signature book series. It's not, for the record. It also claims that being associated with the dark content in "Bandersnatch" tarnishes the family-friendly reputation of "Choose Your Own Adventure" books, and the company is suing for both an injunction against Netflix and damages of at least $25 million. Again, Chooseco's publisher Shannon Gilligan.

GILLIGAN: Trademark law requires that you protect your mark because if you don't, you lose control of it.

CHRIS SPRIGMAN: So it makes perfect sense, from Chooseco's perspective, to try to wring whatever value remains out of this trademark.

HOROWITZ-GHAZI: Chris Sprigman teaches law at New York University. Sprigman says that Chooseco's lawsuit is also about combating one of the great dangers to trademark holders, a concept known as genericide.

SPRIGMAN: Genericide is the idea that trademark law is not supposed to be withdrawing words from the English language.

HOROWITZ-GHAZI: If the trademarked name for a particular product manages to become so popular it's used in everyday language to describe a whole category of products, it runs the risk of losing its status as a valid trademark. Case in point...

SPRIGMAN: The word zipper was originally a trademark for a toothed closure. But people started using the word zipper for any toothed closure, and that trademark became worthless. It became generic.

HOROWITZ-GHAZI: Aspirin, thermos, escalator - just a few onetime trademarks that have succumbed to genericide. And while companies are obliged to fight to protect their trademark, they also run the risk of losing it in the process because the legal determination that a trademark has become generic often happens through lawsuits like this one. Chris Sprigman says that means there's an inherent risk to Chooseco's strategy.

SPRIGMAN: Yeah. They're playing with fire because it's entirely possible that Chooseco files a lawsuit, they end up with a finding that the mark has become generic.

HOROWITZ-GHAZI: Carla Engelbrecht, director of product innovation at Netflix, wouldn't comment on the lawsuit. But she says that "Bandersnatch" has tested the technology and confirmed the appetite for new interactive programming.

CARLA ENGELBRECHT: What does it mean for romance? What does it mean for documentaries? You know, personally, I would love to see a really soapy, cheesy telenovela that's like, slap him or cheat on him.

HOROWITZ-GHAZI: What's still unclear is whether they'll choose their own descriptions of what they make. Alexi Horowitz-Ghazi, NPR News. Transcript provided by NPR, Copyright NPR.