Case 2:19-cv-00008-wks Document 32 Filed 02/25/20 Page 1 of 25
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`CHOOSECO LLC,
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`NETFLIX, INC.,
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`Plaintiff/
`Counterdefendant,
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`Defendant/
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`Counterclaimant.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF VERMONT
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` ) Civil Action No. 2:19-cv-00008-WKS
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`DEFENDANT NETFLIX, INC.’S ANSWER,
`AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS
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`Defendant Netflix, Inc. (“Netflix”), by and through its undersigned counsel, hereby
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`responds to the Amended Complaint (the “Amended Complaint”) of Chooseco LLC
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`(“Chooseco”) with the following Answer corresponding to the paragraphs set out in Chooseco’s
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`Amended Complaint, including the headers used by Chooseco, and pleads the following
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`Affirmative Defenses and Counterclaims:
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`Introduction
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`1.
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`In response to Paragraph 1 of the Amended Complaint and the text appearing
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`immediately before Paragraph 1, Netflix admits that (a) Chooseco has asserted claims under the
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`Lanham Act and for unfair competition under the common law of the State of Vermont,
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`(b) Chooseco has obtained a federal trademark registration for the word mark CHOOSE YOUR
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`OWN ADVENTURE (the “Mark”), and (c) Chooseco has not entered into a license or
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`authorization for Netflix to use the Mark. Netflix denies the remaining allegations of
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`Paragraph 1 of the Amended Complaint and the text appearing immediately before Paragraph 1,
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`Case 2:19-cv-00008-wks Document 32 Filed 02/25/20 Page 2 of 25
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`including without limitation any suggestion that Netflix would need any license or authorization
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`from Chooseco in connection with the use at issue in this action or that the Mark is entitled to
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`trademark protection.
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`2.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 2 of the Amended Complaint and on that basis denies those
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`allegations.
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`3.
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`In response to Paragraph 3 and footnote 1 of the Amended Complaint, Netflix
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`admits that (a) it released the film Black Mirror: Bandersnatch (“Bandersnatch”) on Netflix’s
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`digital streaming platform on December 28, 2018; (b) early in the film, the film’s protagonist
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`uses the words “Choose Your Own Adventure” with reference to a fictitious book he is reading,
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`(c) Chooseco’s Amended Complaint discloses aspects of the plot of Bandersnatch; and
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`(d) Chooseco has not entered into a license or authorization for Netflix to use the Mark. Netflix
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`denies the remaining allegations of Paragraph 3 of the Amended Complaint, including without
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`limitation any suggestion that Netflix would need any license or authorization from Chooseco in
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`connection with the use at issue in this action or that the Mark is entitled to trademark protection.
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`4.
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`5.
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`Netflix denies the allegations of Paragraph 4 of the Amended Complaint.
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`Netflix admits that Chooseco is seeking damages and injunctive relief in this
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`action, but denies that there is any basis for the award of any damages or the entry of any
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`injunctive relief.
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`Parties
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`6.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 6 of the Amended Complaint and on that basis denies those
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`allegations.
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`7.
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`Netflix admits the allegations of Paragraph 7 of the Amended Complaint.
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`Jurisdiction and Venue
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`8.
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`Paragraph 8 of the Amended Complaint states legal conclusions to which no
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`response is required.
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`9.
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`The first sentence of Paragraph 9 of the Amended Complaint states legal
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`conclusions to which no response is required. In response to the allegations of the second and
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`third sentences of Paragraph 9 of the Amended Complaint, Netflix admits that Vermont residents
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`subscribe to Netflix’s subscription-based digital video streaming service (the “Netflix Service”),
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`which allows subscribers to access its library of movies and television programs (the “Content”)
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`upon paying a monthly subscription fee. Netflix denies the remaining allegations of Paragraph 9
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`of the Amended Complaint, including without limitation that Netflix separately offered or offers
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`Bandersnatch other than as part of a subscription to the Netflix Service.
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`10.
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`Paragraph 10 of the Amended Complaint states legal conclusions to which no
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`response is required.
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`Facts
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`11.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 11 of the Amended Complaint and on that basis denies those
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`allegations.
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`12.
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`Netflix denies that the rounded color frame, “whether single or double,” described
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`in Paragraph 12 of the Amended Complaint is an element of Chooseco’s trade dress; that such
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`rounded color frame is entitled to trademark or trade dress protection; and that any alleged
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`foreign uses of such a rounded color frame, including without limitation as depicted in the
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`images contained in Paragraph 12, would support a claim for infringement in the United States.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth of the
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`remaining allegations in Paragraph 12 of the Amended Complaint and on that basis denies those
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`allegations.
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`13.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 13 of the Amended Complaint and on that basis denies those
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`allegations.
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`14.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 14 of the Amended Complaint and on that basis denies those
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`allegations.
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`15.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 15 of the Amended Complaint and on that basis denies those
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`allegations.
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`16.
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`In response to the allegations of Paragraph 16 of the Amended Complaint, Netflix
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`admits that Chooseco has obtained a federal trademark registration for the Mark in connection
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`with books, movies, and other types of media, but denies that the Mark is entitled to trademark
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`protection. Netflix lacks knowledge or information sufficient to form a belief about the truth of
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`the remaining allegations in Paragraph 16 of the Amended Complaint and on that basis denies
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`those allegations.
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`17.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 17 of the Amended Complaint and on that basis denies those
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`allegations.
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`18.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 18 of the Amended Complaint and on that basis denies those
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`allegations.
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`19.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 19 of the Amended Complaint and on that basis denies those
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`allegations.
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`20.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 20 of the Amended Complaint and on that basis denies those
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`allegations.
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`21.
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`In response to the allegations of Paragraph 21 of the Amended Complaint, Netflix
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`admits that, in or around 2016, Netflix engaged in discussions with Chooseco about a potential
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`project that would have (a) used Chooseco’s content; (b) included licensing use of the Mark in
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`connection with that project; and (c) involved branding and advertising the completed project
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`with the Mark. Netflix denies the remaining allegations in Paragraph 21 of the Amended
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`Complaint, including without limitation any suggestion that those discussions were in any way
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`associated with Bandersnatch or that Netflix would need any license or authorization from
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`Chooseco in connection with the use at issue in this action.
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`22.
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`23.
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`Netflix admits the allegations of Paragraph 22 of the Amended Complaint.
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`In response to the allegations of Paragraph 23 of the Amended Complaint, Netflix
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`admits that (a) Netflix operates the Netflix Service; (b) the Netflix Service includes the Content;
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`and (c) subscribers to the Netflix Service can access the Content through personal devices, such
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`as televisions, computers and smartphones. Netflix denies the remaining allegations in
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`Paragraph 23 of the Amended Complaint.
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`24.
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`In response to the allegations of Paragraph 24 of the Amended Complaint, Netflix
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`admits that Vermont residents subscribe to the Netflix Service, which allows subscribers to
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`access the Content upon paying a monthly subscription fee. Netflix denies the remaining
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`allegations of Paragraph 24 of the Amended Complaint, including without limitation that Netflix
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`subscribers may separately purchase individual digital content.
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`25.
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`In response to the allegations of Paragraph 25 of the Amended Complaint, Netflix
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`admits that Netflix’s streaming library includes an anthology series called Black Mirror and
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`states that the contents of the Black Mirror programs comprising the anthology speak for
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`themselves such that no response is required.
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`26.
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`27.
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`Netflix admits the allegations of Paragraph 26 of the Amended Complaint.
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`In response to the allegations of Paragraph 27 of the Amended Complaint, Netflix
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`admits that Netflix subscribers have viewed Bandersnatch from locations in Vermont. Netflix
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`denies the remaining allegations in Paragraph 27 of the Amended Complaint.
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`28.
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`In response to the allegations of Paragraph 28 of the Amended Complaint, Netflix
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`states that Bandersnatch speaks for itself such that no response is required. To the extent a
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`response is required, Netflix admits that Bandersnatch involves viewers making choices that
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`affect the plot and endings viewers are shown, and denies the remaining allegations of
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`Paragraph 28 of the Amended Complaint, including without limitation any suggestion that
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`Netflix would need any license or authorization from Chooseco in connection with the use of a
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`branching narrative device in Bandersnatch.
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`29.
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`In response to the allegations of Paragraph 29 and footnote 2 of the Amended
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`Complaint, Netflix states that Bandersnatch speaks for itself such that no response is required.
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`To the extent a response is required, Netflix admits that the image depicted in Paragraph 29 of
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`the Amended Complaint appears in Bandersnatch, when English language subtitles are turned
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`on, and otherwise denies Chooseco’s characterizations of a brief scene in a feature length film.
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`30.
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`In response to the allegations of Paragraph 30 of the Amended Complaint, Netflix
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`states that Bandersnatch speaks for itself such that no response is required. To the extent a
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`response is required, Netflix admits that the image depicted in Paragraph 30 of the Amended
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`Complaint appears in Bandersnatch, when English language subtitles are turned on, and
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`otherwise denies the remaining allegations of Paragraph 30 of the Amended Complaint,
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`including without limitation Chooseco’s characterizations of a brief scene in a feature length
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`film, any implication that the protagonist (Butler) is identifying the book Bandersnatch as a book
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`published by Chooseco, or any suggestion that Netflix would need any license or authorization
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`from Chooseco to use the Mark in connection with a fictitious book in a fictional film.
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`31.
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`In response to the allegations of Paragraph 31 of the Amended Complaint, Netflix
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`states that Bandersnatch speaks for itself such that no response is required. To the extent a
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`response is required, Netflix admits that the image depicted in Paragraph 31 of the Amended
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`Complaint appears in Bandersnatch, when English language subtitles are turned on, and
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`otherwise denies Chooseco’s characterizations of a brief scene in a feature-length film.
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`32.
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`In response to the allegations of Paragraph 32 of the Amended Complaint, Netflix
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`states that Bandersnatch speaks for itself such that no response is required. To the extent a
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`response is required, Netflix admits that the image depicted in Paragraph 32 of the Amended
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`Complaint appears in Bandersnatch, when English language subtitles are turned on, and
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`otherwise denies Chooseco’s characterizations of a brief scene in a feature length film.
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`33.
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`In response to the allegations of Paragraph 33 of the Amended Complaint, Netflix
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`states that Bandersnatch speaks for itself such that no response is required. To the extent a
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`response is required, Netflix admits that all viewers of Bandersnatch who watch that far see the
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`scene depicted in Paragraph 33 of the Amended Complaint. Netflix denies the remaining
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`allegations in Paragraph 33 of the Amended Complaint, including without limitation any
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`suggestion that Netflix would need any license or authorization from Chooseco in connection
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`with the use at issue in this action or that the Mark is entitled to trademark protection.
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`34.
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`In response to the allegations of Paragraph 34 of the Amended Complaint, Netflix
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`states that Bandersnatch speaks for itself such that no response is required. To the extent a
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`response is required, Netflix admits that Bandersnatch carries a rating of TV-MA, that it includes
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`mature themes and imagery, and that it is targeted to mature audiences. Netflix denies the
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`remaining allegations in Paragraph 34 of the Amended Complaint, including without limitation
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`Chooseco’s characterizations of content of the film or the fictional videogame depicted in the
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`film.
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`35.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in the first sentence of Paragraph 35 of the Amended Complaint and on that
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`basis denies those allegations. The allegations in the second sentence of Paragraph 35 of the
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`Amended Complaint state a legal conclusion to which no response is required. To the extent that
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`a response is required, Netflix denies the allegations in the second sentence of Paragraph 35 of
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`the Amended Complaint.
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`36.
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`Netflix admits the allegations of Paragraph 36 of the Amended Complaint, but
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`denies any suggestion that Netflix would need any license or authorization from Chooseco in
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`connection with the use at issue in this action or that the Mark is entitled to trademark protection.
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`37.
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`Netflix denies the allegations in the first sentence of Paragraph 37 of the
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`Amended Complaint. In response to the allegations in the second sentence of Paragraph 37 of
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`the Amended Complaint, Netflix admits that there has been press coverage and reviews of
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`Bandersnatch, the contents of which speak for themselves such that no response is required. To
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`the extent that a response is required, Netflix admits that certain press coverage and reviews of
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`Bandersnatch have referenced the Choose Your Own Adventure book series.
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`38.
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`In response to the allegations in the first sentence of Paragraph 38 of the
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`Amended Complaint, Netflix admits that there were posts on social media discussing
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`Bandersnatch, the contents of which speak for themselves such that no response is required. To
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`the extent that a response is required, Netflix admits that certain social media posts referenced
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`the Choose Your Own Adventure book series. Netflix denies the allegations in the second
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`sentence of Paragraph 38 of the Amended Complaint.
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`39.
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`40.
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`41.
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`42.
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`Netflix denies the allegations of Paragraph 39 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 40 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 41 of the Amended Complaint.
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`In response to the allegations of Paragraph 42 of the Amended Complaint, Netflix
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`admits that it has employed colored borders in certain aspects of promoting Bandersnatch.
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`Netflix denies the remaining allegations of Paragraph 42 of the Amended Complaint, including
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`without limitation that those colored borders are an element of Chooseco’s trade dress or that
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`they are entitled to trademark or trade dress protection.
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`43.
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`In response to the allegations of Paragraph 43 of the Amended Complaint, Netflix
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`states that the referenced website, created for the fictitious “Tuckersoft” videogame company
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`included in the film Bandersnatch (the “Tuckersoft Website”), speaks for itself such that no
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`response is required. To the extent a response is required, Netflix admits that the image depicted
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`in Paragraph 43 of the Amended Complaint is a partial screenshot of the Tuckersoft Website.
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`Netflix denies the remaining allegations in Paragraph 43 of the Amended Complaint.
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`44.
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`In response to the allegations of Paragraph 44 of the Amended Complaint, Netflix
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`states that the referenced Tuckersoft Website speaks for itself such that no response is required.
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`To the extent a response is required, Netflix admits that certain of the videogame covers shown
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`on the Tuckersoft Website have double rounded borders and that certain of the videogame covers
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`reference other episodes in the Black Mirror anthology, including an episode entitled
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`“Metalhead.” Netflix denies the remaining allegations of Paragraph 44 of the Amended
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`Complaint, including without limitation any suggestion (a) that the double rounded borders
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`shown on the videogame covers resemble the double rounded borders used on Choose Your Own
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`Adventure books; (b) that those colored borders are an element of Chooseco’s trade dress; or
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`(c) that they are entitled to trademark or trade dress protection.
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`45.
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`46.
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`Netflix admits the allegations of Paragraph 45 of the Amended Complaint.
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`Netflix admits that the image depicted in Paragraph 46 of the Amended
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`Complaint, showing the fictional “Bandersnatch” videogame cover, is one of many thumbnail
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`icons used for the film Bandersnatch in the Netflix Service. Netflix denies the remaining
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`allegations of Paragraph 46 of the Amended Complaint, including that the thumbnail constitutes
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`a marketing effort since it is only shown to subscribers who have already purchased the Netflix
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`Service.
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`47.
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`In response to the first three sentences of Paragraph 47 of the Amended
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`Complaint, Netflix admits that images from the covers of the fictitious Tuckersoft videogames
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`were used in at least one “pop up storefront” and on posters to promote Bandersnatch in the
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`United Kingdom. Netflix denies the remaining allegations in the first three sentences of
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`Paragraph 47 of the Amended Complaint. Netflix lacks knowledge or information sufficient to
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`Case 2:19-cv-00008-wks Document 32 Filed 02/25/20 Page 11 of 25
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`form a belief about the truth of the allegations in the fourth sentence of Paragraph 47 of the
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`Amended Complaint and on that basis denies those allegations.
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`48.
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`49.
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`50.
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`Netflix denies the allegations of Paragraph 48 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 49 of the Amended Complaint.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 50 of the Amended Complaint and on that basis denies those
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`allegations.
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`51.
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`52.
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`53.
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`54.
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`Netflix denies the allegations of Paragraph 51 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 52 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 53 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 54 of the Amended Complaint,
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`including without limitation that Chooseco has suffered any injury as the result of conduct by
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`Netflix.
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`First Claim for Relief – Federal Trademark Infringement
`(15 U.S.C. § 1114)
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`55.
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`Netflix hereby incorporates by reference Paragraphs 1 through 54 of this Answer
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`as if fully set forth herein.
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`56.
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`In response to the allegations of Paragraph 56 of the Amended Complaint, Netflix
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`admits that Chooseco has obtained a federal trademark registration for the Mark. Netflix denies
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`the remaining allegations of Paragraph 56 of the Amended Complaint, including without
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`limitation that the Mark is entitled to trademark protection.
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`57.
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`Netflix lacks knowledge or information sufficient to form a belief about the truth
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`of the allegations in Paragraph 57 of the Amended Complaint and on that basis denies those
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`allegations.
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`58.
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`59.
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`60.
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`61.
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`62.
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`63.
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`64.
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`Netflix denies the allegations of Paragraph 58 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 59 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 60 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 61 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 62 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 63 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 64 of the Amended Complaint.
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`Second Claim for Relief – Federal Trademark Dilution
`(15 U.S.C. § 1125(c))
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`65.
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`Netflix hereby incorporates by reference Paragraphs 1 through 64 of this Answer
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`as if fully set forth herein.
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`66.
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`67.
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`68.
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`69.
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`70.
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`71.
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`72.
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`Netflix denies the allegations of Paragraph 66 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 67 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 68 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 69 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 70 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 71 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 72 of the Amended Complaint.
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`Third Claim for Relief – Unfair Competition and False Designation of Origin
`(15 U.S.C. § 1125(a))
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`73.
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`Netflix hereby incorporates by reference Paragraphs 1 through 72 of this Answer
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`as if fully set forth herein.
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`74.
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`75.
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`76.
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`Netflix denies the allegations of Paragraph 74 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 75 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 76 of the Amended Complaint.
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`77.
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`78.
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`79.
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`80.
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`Netflix denies the allegations of Paragraph 77 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 78 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 79 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 80 of the Amended Complaint.
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`Fourth Claim for Relief – Unfair Competition
`(Vermont Common Law)
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`81.
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`Netflix hereby incorporates by reference Paragraphs 1 through 80 of this Answer
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`as if fully set forth herein.
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`82.
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`83.
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`84.
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`85.
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`86.
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`87.
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`88.
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`89.
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`90.
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`Netflix denies the allegations of Paragraph 82 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 83 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 84 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 85 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 86 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 87 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 88 of the Amended Complaint.
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`Netflix denies the allegations of Paragraph 89 of the Amended Complaint.
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`In response to the text under the heading “Prayer for Relief,” including without
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`limitation subparagraphs 1-4, Netflix denies that Chooseco is entitled to any relief in this action.
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`91.
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`Netflix expressly denies any allegation not specifically admitted herein.
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`AFFIRMATIVE DEFENSES
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`By alleging the separate and additional defenses set forth below, Netflix is not in any way
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`agreeing or conceding that it has the burden of proof or the burden of persuasion on any of these
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`issues.
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`Case 2:19-cv-00008-wks Document 32 Filed 02/25/20 Page 14 of 25
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`FIRST DEFENSE
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`Chooseco has failed to state a claim upon which relief can be granted.
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`SECOND DEFENSE
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`Chooseco’s claims are barred by the First Amendment to the United States Constitution.
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`THIRD DEFENSE
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`Chooseco’s claims are barred, in whole or in part, by the fair use defense.
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`FOURTH DEFENSE
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`Chooseco’s claims are barred, in whole or in part, because there is no likelihood of
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`confusion with respect to Netflix’s alleged use of Chooseco’s trademark.
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`FIFTH DEFENSE
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`Any losses or damages allegedly caused by Netflix and sustained by Chooseco are de
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`minimis, remote, speculative, or transient and not cognizable by law.
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`Chooseco’s claims are barred, in whole or in part, by the doctrines of laches, waiver,
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`SIXTH DEFENSE
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`estoppel, and/or acquiescence.
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`SEVENTH DEFENSE
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`Chooseco’s claims are barred, in whole or in part, because it failed to protect its
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`trademark.
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`EIGHTH DEFENSE
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`Chooseco’s claims are barred, in whole or in part, by the doctrine of genericide.
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`NINTH DEFENSE
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`Chooseco’s claims are barred, in whole or in part, because Chooseco’s trademark lacks
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`acquired distinctiveness.
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`Case 2:19-cv-00008-wks Document 32 Filed 02/25/20 Page 15 of 25
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`TENTH DEFENSE
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`Chooseco’s claims are barred, in whole or in part, because it has experienced no actual
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`harm or injury as a result of Netflix’s alleged use of Chooseco’s trademark.
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`ELEVENTH DEFENSE
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`Chooseco’s claims are barred, in whole or in part, because Netflix acted with good faith.
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`TWELTH DEFENSE
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`Chooseco has failed to mitigate its damages as required by law.
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`ATTORNEYS’ FEES
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`Chooseco’s actions make this an exceptional case under the Lanham Act and, therefore,
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`Netflix is entitled to its attorneys’ fees under the Lanham Act and other applicable law.
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`WHEREFORE, Netflix respectfully requests that:
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`1.
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`Judgment be entered in its favor, and the Amended Complaint be dismissed with
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`
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`prejudice;
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`2.
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`3.
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`Netflix be awarded its costs, disbursements, and attorneys’ fees; and
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`The Court grant Netflix such other and further relief as is just and proper.
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`COUNTERCLAIMS
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`Defendant/Counterclaimant Netflix, Inc. (“Netflix”) brings the following counterclaims
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`against Plaintiff/Counterdefendant Chooseco LLC (“Chooseco”):
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`THE PARTIES
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`1.
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`Netflix is a publicly traded Delaware corporation with a principal place of
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`business in Los Gatos, California.
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`2.
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`According to the allegations of the Amended Complaint, Chooseco is a Vermont
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`limited liability company with a principal place of business in Waitsfield, Vermont.
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`JURISDICTION AND VENUE
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`3.
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`This claim arises under the trademark laws of the United States, the Lanham Act,
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`Title 15 of the United States Code. This Court has subject matter jurisdiction under 15 U.S.C.
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`§ 1051, et seq., and in particular §§ 1119 and 1121(a), 28 U.S.C. §§ 1331, 1338(a), and 1367(a),
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`and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
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`4.
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`This Court has personal jurisdiction over Chooseco because Chooseco resides in
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`this judicial district, has its principal place of business in this judicial district, and does regular
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`business in this judicial district. This Court further has personal jurisdiction over Chooseco
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`based on the fact that Chooseco filed the instant action in this judicial district.
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`5.
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`Venue in this Court is proper under 28 U.S.C. §§ 1391(b) and (c) because a
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`substantial part of the events and omissions giving rise to the counterclaims herein arose in this
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`judicial district. Venue is also proper in this judicial district because Chooseco has consented to
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`this venue by filing the instant action in this judicial district.
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`I.
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`Netflix’s Black Mirror: Bandersnatch
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`FACTS
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`6.
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`Netflix is a popular media services company that primarily offers subscription-
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`based digital video streaming services (the “Netflix Service”). Since 2010, Netflix has used the
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`word mark NETFLIX in connection with the Netflix Service, and has obtained a federal
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`trademark registration for that mark. See Reg. No. 4,953,701.
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`7.
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`Netflix’s streaming library includes several seasons of Black Mirror, a popular
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`and critically acclaimed speculative fiction anthology that examines the relationship between
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`humans and technology. Black Mirror is widely known as originating with Netflix. An
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`application for the mark BLACK MIRROR is pending under serial number 87/857,889.
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`Case 2:19-cv-00008-wks Document 32 Filed 02/25/20 Page 17 of 25
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`8.
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`On December 28, 2018, Netflix released a film within the Black Mirror anthology
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`called Black Mirror: Bandersnatch (“Bandersnatch”).
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`9.
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`In 2019, Bandersnatch received an Emmy award for “Outstanding Television
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`Movie.”
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`10.
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`Bandersnatch is an interactive film that uses a “branching narrative” storytelling
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`technique. Specifically, in Bandersnatch, viewers determine the plot of the film by selecting
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`options using a mouse or other controller as the film progresses. Each selection made by a
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`viewer impacts the subsequent plot of the film and can lead to various different endings.
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`11.
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`Bandersnatch chronicles the efforts of a fictional video game programmer named
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`Stefan Butler to develop a video game for a fictitious video game company called Tuckersoft.
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`Butler’s game is based on a fictional book titled “Bandersnatch” by a fictional author named
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`Jerome F. Davies. Both “Bandersnatch” the fictional book and the “Bandersnatch” video game
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`that Butler works to develop use an interactive-storytelling technique similar to that of the
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`Bandersnatch film itself.
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`12.
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`Unlike most works in the genre of interactive storytelling, in Bandersnatch, the
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`viewer does not step into the shoes of the protagonist whose fate the viewer purportedly controls.
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`Rather, in Bandersnatch, the viewer controls the main character as an outside force. At times,
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`the film depicts Butler as actively resisting the commands the viewer gives him, such as when
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`the viewer commands him to “pull on his earlobe.” When Butler ultimately becomes cognizant
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`that his choices are being controlled, viewers are given the option to tell him he is being
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`manipulated by a person from the future using a computer service called “Netflix.”
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`13.
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`Bandersnatch is also distinct from most works within the interactive-narrative
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`genre in that, in Bandersnatch, there is no way for the viewer to make choices that will enable its
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`Case 2:19-cv-00008-wks Document 32 Filed 02/25/20 Page 18 of 25
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`protagonist to successfully complete the adventure he has set out for himself (in this case, to
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`successfully convert the book “Bandersnatch” into a popular video game). Every possible
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`ending for the film turns out badly for Butler, despite a viewer’s efforts to navigate him to a
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`successful ending.
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`14.
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`The film uses these subversions of the expectations associated with the
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`interactive-storytelling genre to explore questions of free will and the concern that people are
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`increasingly controlled by technology. This is in keeping with the larger themes of the Black
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`Mirror anthology.
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`15.
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`In a single line of dialogue early in the film, Butler’s father asks him why he is
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`“always flicking backwards and forwards” in the fictitious book “Bandersnatch.” Butler answers
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`that is because the book is “a ‘Choose Your Own Adventure’ book,” meaning that it is the kind
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`of book in which “[y]ou decide what your character does.” The phrase “Choose Your Own
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`Adventure” is not used in any other scenes in the film, in any promotion of the film, or in
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`connection with marketing the Netflix Service actually purchased by consumers.
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`16.
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`The single line of dialogue in which Butler uses the phrase “Chose Your Own
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`Adventure” w