back to article Netflix wants to choose its own adventure where Bandersnatch trademark case magically vanishes

Netflix is adamant that the path of its Bandersnatch trademark lawsuit should be for the judge to throw the case out. How does El Reg respond? Option 1: Write a serious story about Netflix's legal battle (go to paragraph 4) Option 2: Write a sarcastic story about Netflix's legal battle in the style of a choose-your-own- …

  1. FuzzyWuzzys Silver badge
    Happy

    Cursed name...

    Can't think of "Bandersnatch" without thinking about the doc about Imagine software blowing up on BBC TV.

    1. M.V. Lipvig
      Trollface

      Re: Cursed name...

      I was thinking it referred to a chastity belt, but then my mind tends to run downhill towards the gutters like that.

    2. Truckle The Uncivil

      Re: Cursed name...

      I can't think of Bandersnatch without thinking of Larry Niven.

      1. Martin

        Re: Cursed name...

        Well, call me old fashioned, but the first thing that comes into my mind is "...frumious Bandersnatch" from Jabberwocky by Lewis Carroll.

        Beware the Jabberwock, my son!

        The jaws that bite, the claws that scratch!

        Beware the Jub-jub bird, and shun

        The frumious Bandersnatch!

        1. Andrew Moore Silver badge

          Re: Cursed name...

          Ditto.

  2. Quatroux

    Would you be insulted

    if I didn't go back to read option 1?

  3. GrapeBunch Bronze badge

    You Would Have Bet Your Bottom Dollar

    I can't see "Sueball" without hearing "Stewball", a song about a horse race, covered by The Weavers.

    And sueballs do have the unpredictability of a horse race.

    1. The Nazz Silver badge

      Re: You Would Have Bet Your Bottom Dollar

      Is SueBalls a friend of the 1970s Lola?

    2. Anonymous Coward
      Anonymous Coward

      Re: You Would Have Bet Your Bottom Dollar

      Who cares?

    3. GrapeBunch Bronze badge

      Re: You Would Have Bet Your Bottom Dollar

      No offence to Joan Baez, or Peter Paul and Mary, or The Hollies, but The Weavers version of Stewball, as in the 2nd volume of their Carnegie Hall set, is the one that resounds for me. It also has a different tune from the other three mentioned.

  4. osmarks

    Rounded corners. Really. They're suggesting that their stuff is being stolen because there are some rounded corners.

    1. SkippyBing Silver badge

      Imagine the kind of messed up world where there was a legal basis for that kind of thing.

      1. Graham Dawson

        You accept this reality and vow to create a rounder corner. Go to page 17.

        You live in a world that is sane and rational. Go to page 21.

    2. vtcodger Silver badge

      "They're suggesting that their stuff is being stolen because there are some rounded corners."

      I imagine they are suggesting that the Netflix Bandersnatch product looks and feels enough like their products that a reasonable person might be confused as to who produced them. Is that true? Does anyone care? Maybe Netflix could kind of square up the corners or something?

    3. Richard Tobin

      Rounded corners

      Wait, isn't it Apple who have patented rounded corners?

      1. lglethal Silver badge

        Re: Rounded corners

        Apple will now sue Chooseco for breaching its design patent on rounded corners.

        To find out if chooseco survive the lawsuit turn to Page 20.

      2. Dave 126 Silver badge

        Re: Rounded corners

        > Wait, isn't it Apple who have patented rounded corners?

        It's a 'Design Patent' (US), what we in the UK more usefully call Trade Dress (like the shape of a Marmite jar or the grills on a Rolls Royce) - and it's not rounded corners per se but the specific use of rounded corners of specific radii in relation to other design elements. Such terminology is the only way to describe geometric forms accurately in words in a court case. Try describing a Coca Cola bottle unambiguously in words and see how you get on. It's easier to understand in pictures. The context was whether Samsung's early iPhone competitor looked just like an iPhone when Samsung could have given it any one of a huge range of appearances without compromising its function. Look at pictures and judge for yourself.

        More recently Samsung have been pushing their quantum dot televisions - nice enough sets, superior in bright rooms to LGs OLED TVs - as QLED in a typeface that looks like OLED. LG's OLED (where every pixelnis its own light source, and so black areas in an image are perfectly black) are hugely superior to QLED (which is just normal LED technology using quantum dots to filter the backlight) in darker rooms and carry a price tag to match. Is it coincidence that Samsung aren't actively helping to reduce consumer confusion when there's millions of dollars at stake? You judge.

        1. Gobhicks

          Re: Rounded corners

          As an out and proud pedant I would demur. US Design Patent = UK Registered Design, both involving a formal examination and registration procedure that grants statutory rights protecting the visual appearance of products. Trade Dress in the UK refers to common law rights attached to product and packaging design. US also has Trade Dress laws, which don't require but do allow for official registration.

  5. Brian Miller

    Scott Adams not a precedent??

    Or how about the old Tunnels and Trolls game books from the mid 1980s? And doesn't Apple have the world cornered on rounded corners? I'm quite surprised that the Netflix lawyers didn't mention any precedents for a person choosing their own adventure.

    Utopia: a place that is not here. Dystopia: a place that is not Utopia, i.e., here.

    1. DavCrav Silver badge

      Re: Scott Adams not a precedent??

      "Or how about the old Tunnels and Trolls game books from the mid 1980s? And doesn't Apple have the world cornered on rounded corners? I'm quite surprised that the Netflix lawyers didn't mention any precedents for a person choosing their own adventure."

      They'd best not. Choose Your Own Adventure was published in 1979, before the examples you give.

      1. Ian Emery Silver badge

        Re: Scott Adams not a precedent??

        BBC "Decide Your Destiny" Dr Who books, if you dont protect your copyright you lose it, so were the BBC sued??

        1. DavCrav Silver badge

          Re: Scott Adams not a precedent??

          "BBC "Decide Your Destiny" Dr Who books, if you dont protect your copyright you lose it, so were the BBC sued??"

          Did they call it 'Choose Your Own Adventure'? Or, you know, 'Decide Your Destiny'?

        2. Anonymous Coward
          Anonymous Coward

          Re: Scott Adams not a precedent??

          "choose your own adventure" is copyright, not patent law so doesn't have to be novel as it is merely a phase they use as a unique indentifier of their product, like say simples from those meercats.

          If some competing company can sling "simples" or "meercats" on their advertising then all the money that Compare The Market spent on their advertising looses it's benefit to the company.

          I would say that netflix ei ther chose to infringe in the knowledge that they would win in court or just didnt care once they noticed, that chooseco are very small fish and unable to afford equal legal representation goes without saying. That the little guy here looses his business because netflix do not care who they damage also is axiomatic

          IMHO Netflix are at best uncaring bullies throwing their weight around and stamping upon the fingers of an innocuous small trader who clearly are not IP trolls

          1. RedCardinal

            Re: Scott Adams not a precedent??

            >>I would say that netflix either chose to infringe in the knowledge...

            Or the company suing them is talking out it's arse....

          2. Patrician

            Re: Scott Adams not a precedent??

            Or the Choose Your Own Adventure company and trying it on and looking for a cash payout from Netflix; if this case is valid then Choose Your Own Adventure Company owe a lot of money Infocom for breach of copyright.

          3. phuzz Silver badge

            Re: Scott Adams not a precedent??

            "I would say that netflix [..] chose to infringe"

            More likely the writers assumed that "Choose your own adventure" was not a trademark, because, lets face it, who would be so venial as to trademark something like that? (well, in retrospect, ChooseCo would).

            By the time they realised that there was a litigious company out there tha,t and that it was indeed a trademark, they were too far through to stop, and probably forgot that a character uses the exact words "Choose your own adventure book" at one point.

        3. Tom 38 Silver badge

          Re: Scott Adams not a precedent??

          You don't have to protect copyright in order to assert those rights. You do have to protect trademarks in order to assert them.

      2. Mike 16 Silver badge

        Re: Trademark, not Patent.

        Looking for prior art is (mostly) associated with patents. I'm pretty sure the "famous Czech Branching Movie" ("Dream Machines/Computer Lib", Ted Nelson) from 1967 predates the examples mentioned so far, as do the IBM "Programmed Learning" books I first met in 1961 or so.

        The issue isn't the technique, but the name. Having a character named Ricky Rat may skate close to the edge, but using the M-words is gonna cost you.

      3. Anonymous Coward
        Anonymous Coward

        Re: Scott Adams not a precedent??

        I had several of the 'follow your own adventure?' books in the early 70s - definitely pre 1974

      4. vtcodger Silver badge

        Re: Scott Adams not a precedent??

        "They'd best not. Choose Your Own Adventure was published in 1979 .."

        Well, OK then. How about the Colossal Cave adventure which dates back to about 1975? https://en.wikipedia.org/wiki/Colossal_Cave_Adventure But I'm pretty sure that that was based on prior art of some sort. Maybe something from Avalon Hill? I can remember playing some of their games back in the early 1960s.

        1. gotes

          Re: Scott Adams not a precedent??

          As another poster has mentioned, the complaint is about the use of the trademark "Choose your own adventure", not the concept of choosing your own adventure.

      5. RedCardinal

        Re: Scott Adams not a precedent??

        The first Tunnels and Trolls choose your own adventure type book "Buffalo Castle" was publiushed in 1976...

      6. Roj Blake Silver badge

        Re: Scott Adams not a precedent??

        Tunnels and Trolls was first published in 1975 as a more accessible alternative to Dungeons and Dragons. The first solo adventure for the rules was published in 1976.

        1. Dave 126 Silver badge

          Re: Scott Adams not a precedent??

          Reading the comments here, it seems that some some of you understand Choose Your Own Adventure as being generic when in fact it is trademarked. And that is understandable. It tends to be those brands whose IP is in danger of being seen as generic by the public who defend it most the most. Take Hoover (TM), for example, when many people won't think twice about saying 'I'm going to hoover the floor' , and some people are even known to say 'I'm going to buy a Dyson hoover'. Wow, it's such a suitably onomatopoeiac name for an air sucking device that had someone actively chosen the name Hoover for their vacuum cleaner company we might call them a marketing genius, but in reality the company was just started by a man called Hoover. Such is life.

          I once naively just assumed Portaloo was a generic term, until Portakabin Ltd told eBay to delist my 'site toilet'.

          My dad is still not certain that any smartphone isn't an iPhone.

          And does anyone (other than Blue Peter presenters) actually say sticky tape instead of Sellotape?

        2. Duffy Moon

          Re: Scott Adams not a precedent??

          "The first solo adventure for the rules was published in 1976"

          That takes me back. I used to buy those, as I didn't know anyone else who played RPGs!

      7. Rob Crawford

        Re: Scott Adams not a precedent??

        Actually the Tunnels and Trolls solo adventure Buffalo Castle was released in 1976 and use the tried and tested go to page xx (or section xx)

        Considering there was a full industry publishing these style of adventures (Tunnels & Trolls, D&D and Runequest being but three) it's going to be quite hard to account for why they never 'defended their IP'

        from the so called copyists (or more interestingly their predecessors)

      8. Timmy B Silver badge

        Re: Scott Adams not a precedent??

        "They'd best not. Choose Your Own Adventure was published in 1979, before the examples you give."

        Nope. Buffalo Castle was 1976. I still have a copy stored up in the loft somewhere...

      9. Dapprman
        Holmes

        Re: Scott Adams not a precedent??

        "They'd best not. Choose Your Own Adventure was published in 1979, before the examples you give."

        Actually T&T is older - 1975

    2. Dave 126 Silver badge

      Re: Scott Adams not a precedent??

      > I'm quite surprised that the Netflix lawyers didn't mention any precedents for a person choosing their own adventure

      Read the article. It is not the concept that the complainants are objecting to (after all, there have been similar books) but the phrase 'Choose your own adventure'.

      In the UK we had Fighting Fantasy books, originally written by Steve Jackson and Ian Livingstone, with the tagline You Are The Hero. Their Trade Dress was a yellow banner bisected with a gold coin at the top of the cover. IT Angle: The pair went on to found Games Workshop, and Steve Jackson co-founded Lionhead video games studio with Peter Molyneux and others.

  6. Anonymous Coward
    Anonymous Coward

    You are in a room and all the walls face north, a penguin wants to have your babies, what do you do?

    1. Move south.

    2. Get the Polar bears to eat them.

    3. Go North but avoid the winter that is coming.

    4. Have some sugar puffs even if it makes your wee smell funny.

    5. Flip tape over for next question after trippy loading screen.

    1. Graham Dawson
    2. the Jim bloke Silver badge
      Angel

      You are in a room and all the walls face north, a penguin wants to have your babies, what do you do?

      interior or exterior walls ? because that would determine if you were at the south or north pole. And what does the penguin want my babies for ? dinner? Christmas decorations? cheap labour?

      1. Move south.

      Only possible if previous question resolved to north pole - in which case - it IS the only possibility..

      2. Get the Polar bears to eat them.

      Penguins at the north pole, Get them eaten immediately, before they cause ecological catastrophe, at south pole, you will have to freight your bears in..

      3. Go North but avoid the winter that is coming.

      see 1. only valid if at south pole, in which case going north will improve the weather even if you do visit winter along the way.

      4. Have some sugar puffs even if it makes your wee smell funny.

      ..could I have asparagus instead?..

      5. Flip tape over for next question after trippy loading screen.

      flipping and tripping all over and over

    3. Headley_Grange Silver badge

      You are in a room and all the walls face north, a penguin wants to have your babies, what do you do?

      XYZZY

    4. Uncle Slacky Silver badge

      Sit on a rock and start singing about gold.

  7. Jamie Jones Silver badge

    Spoiler alert!

    It added that every ending in Bandersnatch "turns out horribly" for the main character,

  8. JimmyPage Silver badge
    Stop

    Er, "prior art" goes waaaaaaaaaaaay back ...

    In 1979s "The Mighty Micro" (a book I would still recommend to anyone for a single-book overview of computing and society) the much missed Dr. Christopher Evans (died far too young) not only mentions "interactive" textbooks from the 60s where you chose a page depending on your answer, but also predicts that computing developments would make future media truly interactive.

    If Netflix Lawyers want to pay my mortgage, then I'm giving El Reg permission to forward my details :)

  9. don't you hate it when you lose your account

    A word of warning

    Currently in the process of getting trademarks, copying and patents on the entire Masturbation process. Just a heads up like

    1. Jamie Jones Silver badge
      Coat

      Re: A word of warning

      "Heads up" indeed!

  10. Anonymous Coward
    Anonymous Coward

    I think the point here was that netflix intentionally

    used a phrase that was already under copyright in the knowledge that they have the money to beat any small players.

    That the copyright requires the smaller company to protect their IP or loose it is where this becomes unreasonable.

    Assuming this the the same group who made the "turn to nnn" adventure books series of the 80's then one wonders why Netflix is muscling them out of their own market, certainly not one that netflix has previously had anything to do with.

    Netflix could have used any other phrase with the same meaning but they chose to infringe, given that copyright is supposed to protect the little guy as much as the bigboys then Netlifx cannot be seen as been anything other than a bully.

    chooseco are not trolls they have created their own content since '79 so why is netflix anything other than in the wrong here, yes they can't afford the same quality of representation but then again they are atleast genuine

    1. RedCardinal

      Re: I think the point here was that netflix intentionally

      You seem to be presuming here that "choose your own adventure" is actually owned by Chooseco. The entire point of this legal case is that Netflix disputes this.

      Netflix argument seems to be that Chooseco's claim is bollocks as the phrase is a common one and not unique enought to qualify as a trademark. (It's trademark we're talking about here btw, not copyright)

      Seems reasonable of Netflix to me. Just becuase Chooseco are the little guys here doesn't mean they can freely claim phrases as their own.

      1. Anonymous Coward
        Anonymous Coward

        Re: I think the point here was that netflix intentionally

        @RedCardinal

        "Netflix argument seems to be that Chooseco's claim is bollocks as the phrase is a common one and not unique enought to qualify as a trademark"

        Ah the cries of "I could have invented that!" and yet you/netflix didn't and now who can say if the phrase would be as common as you suggest if chooseco had not invested in it. That the copyright/trademark went through says more about just how uncommon it was at the time than you can remember

      2. Joe W
        Flame

        Re: I think the point here was that netflix intentionally

        How about... "Word"? Or... "Windows". "Safari" (the cookies, of course)?

        1. Richard 12 Silver badge

          Re: I think the point here was that netflix intentionally

          Great examples, let me explain:

          "Word" (and "Office") are not trademarks. Only the icons for that application are trademarked, but the names were refused due to being common words.

          "Windows" is a trademark in the specific, limited context of computer operating systems.

          "Safari" is a trademark in the specific, limited context of a software application/program.

          So it is entirely plausible that "Choose Your Own Adventure" might be declared a trademark in the context of books, but not streaming video (can one confuse the two?). Or that it's a common phrase and the trademark is invalid (do you have a dyson hoover?), or that it's trademarked in the context of arts and entertainment and Netflix are breaching it.

          There will be much legal argument, and lawyers will make a lot of money.

          https://www.microsoft.com/en-us/legal/intellectualproperty/trademarks/en-us.aspx

  11. matthewdjb

    "It added that every ending in Bandersnatch "turns out horribly" for the main character"

    Hey. I've not seen it yet. How about a spoiler warning?

    (Actually, I might watch it now)

    1. FrogsAndChips Bronze badge

      Re: spoiler alert

      This is Black Mirror, what do you expect?

  12. SVV Silver badge

    If it's just money they're after

    Why not develop the concept of this article further and actually write and publish a branded choose your own adventure book called "Boundersnitch" in which a writer called Charlie "choose your own adventure" Booker rips off the idea of a choose your own adventure book for a subscription tv service called "Webpix" and gains lots of publicity and money by doing so? It would be even more of a postmodern jape than the interactive tv show, especially if they gained lots of publicity and money by doing so.

    As for the poem, must reference this marvellous 1968 pyschedelic song adaptation, which always raises a smile in my house :

    https://www.youtube.com/watch?v=2ylIEdzbmcE

  13. Christoph Silver badge

    Option 3:

    Netflix rename that episode "Boojum", and the legal case will softly and suddenly vanish away.

  14. GruntyMcPugh Silver badge

    This is good advertising for ChooseCo,...

    ... because I'd never heard of them before. If anyone had asked, I'd have associated the phrase with the aforementioned 'Fighting Fantasy' books, incorrectly.

    So, having said that, from my PoV, this hasn't damaged their brand, it's made me aware of it.

    1. phuzz Silver badge

      Re: This is good advertising for ChooseCo,...

      I have heard of ChooseCo before, but only in the context of them aggressively suing anyone who used the phrase "choose your own adventure", without (TM)-ing it to them.

      In fact, if Netflix lose, I could see Brooker fixing the problem by just inserting a scene where the character stares straight into the camera, and says "'choose your own adventure' is a trademark of ChooseCo", and then cuts back.

  15. Anonymous Coward
    Anonymous Coward

    "every ending in Bandersnatch "turns out horribly" for the main character"

    Very much spoiler alert.

  16. Oh Matron!

    Time passes......

    Thorin sits down and starts singing about gold.

  17. Roopee
    FAIL

    I would love to comment on Bandersnatch, but...

    ...it won't play on any of the devices I use for Netflix - my 3rd gen Apple TV, an older iPad, and any of my usual PC browsers, so the only comment I can make is "complete fail" Netflix. A great pity as Black Mirror is otherwise one of the best series I've ever watched.

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