Peloton has won a lawsuit over a trademark related to their Peloton Bike+ name.
In May of 2021, a lawsuit was filed against Peloton by World Champ Tech LLC, which claimed Peloton was infringing on a trademark the company owned for the Bike+ name.
World Champ Tech LLC had created an iPhone app, called “Bike+” which was designed to ” allow users detect, record, store, analyze, and share data from their indoor or outdoor cycling sessions”. As part of their their app release, they had also filed a trademark for the name Bike+.
As part of the ongoing lawsuit, both companies had filed for summary judgement in the case. This week, the judge granted Peloton summary judgement – effectively ending the lawsuit in Peloton’s favor, pending any appeals. In the ruling, the judge determined that “there is no likelihood of confusion” between the Peloton Bike+ and the app Bike+ – leading to the ruling.
The court grants the defendant’s motion for summary judgment on the ground that as a matter of law, there is no likelihood of confusion.
The judge noted that while both parties found experts to indicate whether consumers might be confused by the similar trademarks – no evidence had been submitting providing proof of confusion in real life.
Although the parties offered competing expert surveys on whether consumers would be confused and the parties dispute (essentially) the weight those reports should be given, it is undisputed that no evidence of actual confusion has been offered. Given that the parties’ products have coexisted in the marketplace since September 2020, the lack of evidence of actual confusion weighs in the defendant’s favor at the summary-judgment stage.
During the course of the hearing, it came to light that while Peloton’s marketing team and executives involved in the naming of the Peloton Bike+ did not seem to be aware of the World Champ Tech “Bike+” trademark, Peloton’s in-house legal team had discovered the conflict prior to the Peloton Bike+ launching in September 2020. However, they reached out to some outside counsel for an opinion on the matter, and seemed to think there would be no conflict.
Members of the defendant’s in-house legal team “became aware of [the plaintiff] and its trademark registration for a mobile cycling app during the clearance process.” Specifically, Peloton in-house counsel learned of the trademark in October 2019 and then communicated with outside counsel, who provided an opinion on the subject in November 2019.
In a deposition with Peloton’s co-founder and former Chief Product Officer, Tom Cortese, Peloton stated it was not alone in trying to denote their premium products by appending a “+” to the end of it.
The defendant “chose to append a ‘+’ to ‘Bike’ because it is a simple term that consumers understand to signify a product line extension with added features. Numerous leading brands, such as Apple (Apple TV+) and Disney (Disney+), had already adopted ‘+’ for their line expansions.” Thus, the plus sign “can easily be implemented across product lines to indicate a ‘better/best’ product array.”
Another section of the ruling notes that the trademark is weakened, because when World Tech Champ originally filed their trademark, there had been similarly named apps in the app store at the time.
The defendant submitted evidence of nine other apps in the Apple App Store and the Google Play Store using variants of “Plus” or “+” along with “Bike.”47 The plaintiff responds that it “challenged several of these and the use, if any, stopped,”48 but that does not account for all of them and the fact remains that “the [plaintiff’s mark] has been repeatedly associated with [similar] products.”
In the ruling, the judge laid out the 8 factors that the court had looked at in making their decision, and which of the two parties (Peloton as the defendant, or World Champ Tech as the plaintiff it favored). It also notes what the most important of these factors are. These included:
- Strength of the marks (important): Defendant
- Relatedness of the goods (important): Plaintiff
- Similarity of the marks (important): Plaintiff
- Evidence of actual confusion: Defendant
- Marketing channels: strongly Defendant
- Degree of consumer care: Defendant
- Intent to deceive: neutral or very slightly Plaintiff
- Likelihood of expansion: neutral or very slightly Plaintiff
The judge ended the ruling by noting that “given that two of the important factors came out in the plaintiff’s favor, it is a close call whether summary judgment should be granted.” However, they noted that the factors required some “flexibility”. The judge went on to say:
By the time of the defendant’s September 2020 Bike+ product launch, the plaintiff’s Bike+ app was mostly dormant, having gone through an extended update process that finished after September 2020. The last meaningful marketing for the app was in 2019. Subscriber and download numbers were insubstantial and declining and a portion of them were for international consumers. The Pebble Watch portion of the userbase was a very niche group of consumers who, owing to their very specific search criteria, were unlikely to be confused. And crucially, the Bike+ mark is descriptive and is joined in the marketplace by equivalent app names and variants on that composite mark. Not surprisingly, despite several years of coexistence, no evidence of actual confusion was submitted.
This, combined with the fact that an update released for World Tech Champ’s Bike+ app in 2021 didn’t have many sales, and few marketing efforts were made, led the court to rule in Peloton’s favor, as confusion was not very likely.
This all creates a situation where the plaintiff’s app had very little strength for the defendant’s product launch to overtake. And if there is so little to overtake, reverse confusion must be unlikely.
The judge ended the ruling with the statement of “In sum, under these circumstances, confusion is possible but not probable.”
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when a company has less sales than Peloton you know you’re up Schitt’s Creek