California-based streaming service Netflix is seeking a dismissal of a trademark dispute involving the publisher of a popular interactive children's book series. The litigation stems from a case that started when a Vermont-based independent publisher claimed that one of Netflix's original shows made an unflattering reference to its popular book series. The interactive feature film has a scene where a video game designer claims his fictitious work is based on one of the books from this series.
Netflix wants the trademark lawsuit dismissed on the grounds that its reference to the work is protected artistic speech. The reference in question is to a fictitious book with the book series' title by an imaginary author. Netflix's attorneys claim the brief reference in the film "in no way" misleads viewers into thinking that the book's real publisher is connected with the fictional software company mentioned in the film.
The streaming service further contends that the brief reference is protected by the First Amendment. Initially, the publisher claimed Netflix never sought permission to license the trademark. Seeking a minimum of $25 million in damages and legal fees, the publisher also contended that the film's dark content, which includes violence and references to a demonic presence, disparages its trademark. Netflix contends that it was aware of the publisher's trademark, but felt the reference to the book series was shielded by the doctrine of descriptive fair use in the Lanham Act.
With a similar situation, a business law attorney may send a cease and desist letter. In the case discussed above, the publisher claims it sent several such letters that were ignored. Should this happen, a lawyer may recommend pursuing appropriate legal action to protect a secured trademark, especially if the alleged violation has the potential to damage a brand or affect profits.