
By Ahmad Hathout
OTTAWA – Netflix is asking the Federal Court to find that trademarks for ‘Outlast’ by Montreal-based Red Barrels is invalid to protect it against threats allegedly made by the video game developer for its use in the streaming company’s new survival series.
Red Barrels developed a popular survival horror video game called Outlast in 2013 with a subsequent follow-up called The Outlast Trials coming this May. Netflix, meanwhile, launched a survival reality show called Outlast on its streaming platform this past Friday, in which 16 contestants try to outlast each other in the Alaskan wilderness for $1 million USD.
That Friday, it also filed a statement of claim in Federal Court asking that the court find that the California-based company’s “production, offering, streaming and performance of its Outlast television series does not violate any rights” in those trademarks and that those trademarks for ‘Outlast’ and ‘Outlast Trials’ held by Red Barrels in the Canadian database be revoked for not being used in ways it is outlined in the filing.
According to the statement of claim, the streaming platform received a cease-and-desist letter in late February from lawyers representing Red Barrels alleging the eight-episode reality show infringed on the Montreal company’s trademark and asked it to change the name of the show. Netflix said this is “intended to cause harm” to the company.
“Netflix believes that its competition reality television series Outlast can coexist from a trademark perspective with Red Barrels’ fictional horror-themed video game ‘Outlast,’” Netflix said in its statement of claim.
Netflix argues the trademarks for ‘Outlast’ as used to deliver goods and services including “motion pictures,” “television shows” and “web series” should be nullified because Red Barrels has allegedly “never produced, distributed, offered, streamed or performed, whether under the title or name OUTLAST or any other title or name, any television shows, motion pictures, or entertainment in the form of a web-series, nor has it ever offered or provided a subscription-based online streaming service,” the claim said.
“Any assertion of trademark rights in connection with such unused goods and services is improper, and the applications to register these marks in connection with such goods and services were filed in bad faith,” Netflix said, adding Red Barrels allegedly did not file “any evidence that its use of the trademark had commenced in connection with these goods and services.”
The streaming platform is also arguing that “outlast” is a commonly used word and has been used by others in connection with shows, movies and web series and is “therefore not distinctive of Red Barrels.”
Netflix is also arguing that the themes of the television show and the video game are “in complete contrast” to each other in nature and subject matter, so there is “no reasonable likelihood of confusion” that would lead to harm to Red Barrels.
“Netflix brings this action solely to protect itself from Red Barrels’ threats,” the statement of claim added. “Netflix has no wish to harm Red Barrels’ goodwill or business.”
Screenshot of Netflix’s ‘Outlast’ via Netflix