Morgan Hartgrove, Contributing Member 2020-2021
Intellectual Property and Computer Law Journal
Introduction
Over the past decade, the fitness industry has experienced exponential growth and development, especially the boutique fitness industry.[1] From 2013 to 2017, boutique studio memberships grew by 121%.[2]
Unlike a traditional gym, boutique fitness usually involves a niche class (e.g., cycling, barre, or interval-type classes) in a smaller studio.[3] Boutique fitness thrives from offering a unique experience to clients with the opportunity to become part of a fitness and studio community.[4] Besides providing specialized workouts, boutique fitness classes offer an avenue for socialization and allow customers to participate in something unique and trendy.[5]
Intellectual property (IP) law is becoming increasingly relevant to the fitness industry as boutique fitness grows its market share, increases profits, and captures the popular attention of consumers and companion industries alike. To set themselves apart, brands fight to ensure that their intellectual property assets are being protected, maintained, and properly leveraged.[6] For example, if someone wants to invent a new type of fitness machine, they might apply for a patent. If someone wants to protect a commercial or published training materials for a workout, they might register a copyright, and if someone wants to protect the name of a fitness brand, they may register a trademark.[7]
This article overviews the boutique fitness industry, reviews how boutique fitness brands utilize intellectual property to protect their industry, and highlights areas for future discussion and analysis. This article also explains the unique qualities and challenges of IP in boutique fitness.
Overview of Boutique Fitness
While there are many types of boutique classes available, most of the brands and classes have similar characteristics. Boutique studios are generally smaller than traditional gyms. Classes are often small, have limited availability, and are offered only at set times. These classes are specialized and taught in a more crafted and themed space compared to a traditional gym.[8] Boutique fitness classes create a more personal setting for the client and foster a sense of community and belonging. Additionally, boutique fitness instructors are well trained; often they have to be trained and certified by their corporate office before teaching classes for clients.[9] These strict training requirements create uniformity, efficiency, and consistency among classes and instructors. However, curating a unique boutique fitness experience comes with a hefty price. Boutique fitness classes tend to be more expensive than traditional gyms, but members report that they work harder in class and feel more incentivized to go since they paid a premium to attend class.[10]
Within the boutique fitness industry, there are not only many types of classes to take, but there are many different brands clients can choose. Take barre classes, for example, a quick internet search of “barre + your city” will give you dozens of different barre studios to try. Boutique fitness studios are often part of a franchise, although some studios are individually owned and operated.[11]
With so many different boutique fitness classes and brands to choose from, what makes clients choose one type of class and brand over another? Clients value and choose their type of fitness class and brand based on the experience; clients take note of the difficulty of the workout, results achieved, personalized attention, and social setting of the studio.[12]
Studio owners and boutique fitness companies have worked tirelessly to set themselves apart and define their brand in the ninety-four-billion-dollar fitness industry.[13] To stand out, companies often use intellectual property rights to protect their brand. The players within the boutique fitness industry (e.g., companies, creators, studio owners, etc.) often invest in patents, copyrights, and trademarks to protect their IP rights as they compete in the marketplace.[14]However, these IP rights can be challenged, resulting in expensive lawsuits and settlements.
Like other companies, boutique fitness brands have long protected their brands with intellectual property. For example, colors, logos, or phrases are often protected by trademarks and copyrights. Brands will even enter licensing agreements to play certain music and playlists for their classes.[15] However, the actual fitness class, which is the heart of boutique fitness, is more difficult to protect. These companies often have unique choreography designed to sync with specially curated playlists and equipment. Some classes have coined certain phrases, types of movements, and even class environment. For example, Pure Barre has coined the phrase “lift tone burn,” hot yoga uses a specific room temperature, and [solidcore] does not have a receptionist because they believe the trainers should greet clients. These are just a few examples of how boutique fitness brands set themselves apart. Brands protect what makes them unique by utilizing patent, copyright, trademark, and trade dress protection.
Patentability
A patent is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office (USPTO).[16] A patent prevents competitors from copying the protected training system.[17] Additionally, patent holders can permit others to use their patented system in exchange for a fee, also known as a licensing agreement.[18] Two types of patents apply to boutique fitness classes: utility patents and design patents.[19] The USPTO may grant utility patents to anyone who invents or discovers any new and useful process (such as a method), machine, article of manufacture, or composition of matter, or any new and useful improvement.[20] Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.[21]
There has been some debate regarding whether sports methods, training techniques, and physical movements are patentable; however, patenting fitness movements has not been a large focus in patent law.[22] This minimal focus is likely because obtaining a patent requires one to prove that their invention is truly new and innovative while providing some level of utility, novelty, and non-obviousness.[23] In the fitness industry, it is challenging to get a utility patent because one has to prove that they created a new way to move or perform an exercise.[24] There are very few ways moving the human body can create such an unexpected result that they clear the patent hurdles of novelty and non-obviousness.[25] (However, in 2002, a five-year-old successfully patented “ a method for swinging on a swing” side to side, which was quite rare and controversial.)[26]
Sebastien Lagree, the owner of Lagree Fitness, explains the challenges in patenting physical movement:
Let’s face it, most workout types available are using the same exercises; what is really the difference between a Bootcamp and a CrossFit? Both use weights and the same exercises and equipment. Same for all of the trendy cycling studios popping up. It’s a bike and maybe some arm weights.[27]
Lagree is a successful patent owner himself. He patented his workout machine, the Megaformer, and also secured a utility patent for working out on the equipment.[28] Lagree may have successfully patented his fitness class, but this is because the high-intensity, low-impact class is centered around the already patented Megaformer.[29] However, Lagree’s patents have not stopped other brands from recreating high-intensity, low-impact workouts. While a fitness class may contain certain innovative elements, if these elements are not the center appeal of the class, competitors can make small changes to circumvent patent infringement.[30]
Lagree licenses the Megaformer machine and the fitness class as “Lagree” so individuals may start their own studios. For example, [solidcore] founder, Anne Mahlum, started her business by paying for Lagree’s licensing agreement.[31] [Solidcore] also advertises a high-intensity, low-impact workout that uses a machine similar to the Megaformer called a [sweatlana]. However, prior to the [sweatlana], [solidcore] used the patented Megaformer machines for its classes. But as the brand outgrew the licensing agreement, Mahlum no longer wanted to be associated with Lagree because of faulty machines. Several of the licensed machines broke down, which took weeks to replace, and Lagree’s license for extended exclusivity was expensive, which limited her profits and ability to expand.[32] Mahlum began to look for other licensing agreements where one person would not be in control of the workout and machine licenses.[33]
Typically, patent holders or patent licensors will bring suits for patent infringement or breach of contract against infringers. However, Mahlum (the licensee) accused Lagree (the patent holder/licensor) of breach of contract: she claimed Lagree violated the licensing agreement because he could not deliver machines as quickly as promised and was not providing the studios with sufficient training. Mahlum claimed she was paying licensing fees and not getting anything in return.[34] As a result, [solidcore] studios stopped teaching the Lagree method.[35]
In response, Lagree filed suit against [solidcore] and Mahlum. Lagree claimed that Mahlum tried to organize other Lagree licensees against him, created workout moves that constituted an improper use of his machines, and removed his name from the machines and branded them as her own.[36] Lagree sought damages and profits resulting from the alleged infringement.[37] Mahlum countersued, alleging fraud and that Lagree’s machines caused her client defections, economic harm, and reputational damage.[38] She asked for damages and demanded a return of the money she paid in licensing fees to date, reimbursement for moving machines, and repair costs for defective machines.[39]
Mahlum attributed the lawsuit to the cost of expanding her empire and “a flaw in [Lagree’s] business model.”[40]Mahlum and Lagree eventually resolved the dispute and reached a confidential settlement.[41] Both Lagree Fitness and [solidcore] are doing well: as of spring 2021, Lagree Fitness has over 300 studios worldwide, some of which are products of licensing agreements, and [solidcore] has 71 studios nationwide.[42] In an interview with the Washingtonian, Mahlum stated, “[y]ou can’t stop people from opening. I think that’s a business-model flaw. Like Orangetheory Fitness can open next to Blast Fitness or Barry’s Bootcamp. That’s just the way the world goes.”[43] The dispute between Mahlum and Lagree is an example of how patent protections are not always fully protective in practice.
Lagree is not the only boutique fitness brand to enforce its patent rights. In 2019, Peloton, an at-home fitness streaming service, brought suit against Flywheel. Peloton alleged that Flywheel imitated its patented leaderboard feature, which allows remote users to compare their ranks during a workout session and is a signature element of a Peloton workout.[44] In response, Flywheel challenged the validity of Peloton’s patent.[45] Before the parties fully litigated their dispute, both companies settled.[46] While exact terms are not disclosed to the public, Flywheel agreed to stop using the leaderboard feature and withdrew its validity challenges.[47]
These two examples highlight how patent protections are not always fully protective and some companies can work around patent protections or settle intellectual property disputes. Due to these frequent workarounds and private settlements, there is not a significant amount of case law analyzing and articulating the patentability of boutique fitness classes and methods, which leaves uncertainty as to how the law applies to such cases.
Copyright Protection
Copyright is another area of law that can protect the boutique fitness industry and its works. Copyright is a form of protection for original works of authorship fixed in a tangible medium of expression.[48] Copyright protects original works of authorship, while a patent protects inventions and discoveries.[49] Ideas and discoveries are not protected by copyright law, although the way they are expressed may be.[50] In July 2012, the U.S. Copyright Office clarified that “functional physical movements such as sports movements, exercises, and other ordinary motor activities alone” are not works of authorship protected under U.S. copyright law.[51] Even under copyright law, protecting a physical movement is a difficult threshold to meet.
Similar to the patent protection for “swinging on a swing” discussed above, copyright protection extends to dance movements fixed in a tangible medium, provided they meet two criteria: (1) The dance must be an original work and show some minimal level of creativity; (2) The dance must be fixed in a tangible object (e.g., film, video, or precise written description of the dance).[52] An idea for a dance is not entitled to copyright protection, nor is a dance that has been performed but not notated or recorded.[53] This protection is less about the physical movement and more about the tangible object of which it is fixed.
While fitness companies may not be able to protect their physical movements, they likely can protect instructional materials and videos that instructors and companies use to teach their brand of exercise.[54] Those who have copyright protection have the exclusive right to reproduce or distribute works of expression they create.[55] Copyright protection provides additional advantages, such as the ability to seek damages from infringement.[56] In most cases, the biggest IP investment for media-focused fitness businesses is fighting plagiarism.[57]
One example of a company utilizing copyright protections is Beachbody, owner of the P90X videos.[58]Beachbody’s success comes not from monopolizing their training technique but by packaging that training system and controlling its distribution.[59] If there is unauthorized copying of its P90X videos, Beachbody can pursue litigation.[60]
Another example of defending copyright protection is an ongoing case with Peloton. Peloton is defending a copyright infringement lawsuit from a music publishing company alleging that Peloton failed to pay royalties for using certain songs in its playlists, accruing hundreds of millions of dollars in damages.[61] This case is pending as of March 2021, but it highlights the dynamism of the fitness industry: companies are not simply focused on workout equipment and classes.[62] Boutique fitness is reaching new spaces involving music, media, and content creation, all of which may be protected by copyright.[63]
Trademarks
A trademark includes any word, name, symbol, device, or any combination used to identify and distinguish the goods/services of one provider from another and to indicate the source of the goods/services.[64] Like other companies, boutique fitness brands use trademarks to protect phrases, logos, pictures, and nearly anything else that consumers may use to differentiate products or service providers.[65] Trademarks give brands the right to prevent competitors from using similar markings, which keeps their brand recognizable and distinctive.[66]
One example of a trademark infringement lawsuit within the boutique fitness industry is the ongoing matter between Mad Dogg Athletics and Peloton.[67] Mad Dogg Athletics owns the trademark “spin,” “spinner,” and “spinning” for spinning exercise programs and equipment.[68] In early February 2021, Peloton filed petitions with the USPTO to have the terms “spin” and “spinning” treated as generic terms, arguing that the terms are common use now since they have been trademarked since the late 1990s.[69]
In trademark law, things that are descriptive or generic in nature are not trademarkable.[70] Over time, a brand can be so well known that people associate the brand with the general product or action.[71] As a result, the once-protected term becomes generic, and the trademark protection expires.[72]
Mad Dogg argues that deeming the term “spin” generic would harm consumers and the company because “[l]oss of a trademark denies consumers the opportunity to identify an original, quality product developed with years of experience for repeat satisfactory purchases.”[73] Peloton disagrees and claims that Mad Dogg “has spent years engaged in a bullying campaign of demand letters and litigation to force people and companies to stop using the very terms they have every right to use.”[74]
Peloton argues that a simple internet search will reveal that “spin” and “spinning” are generic terms to describe a type of exercise bike and associated in-studio class.[75] If the term “spin” and its other variations become generic, then Mad Dogg would still be able to use the terms, but so would everyone else.[76] It will be interesting to see if this litigation results in a settlement like many other boutique fitness IP infringement cases, or if it will proceed to court. If this case proceeds to court, a ruling in favor of Peloton could set a new precedent for use of terms in the fitness industry.
Trade Dress
Section 43(a) of the Lanham Act protects unregistered trademarks, and also extends protection to trade dress.[77]Trade dress is broad and can include colors and the total image of a business.[78] Trade dress is increasingly relevant to boutique fitness studios, which pride themselves on having uniquely crafted and themed spaces. For example, [solidcore] uses blue lights to darken its studio; Pure Barre has a crisp black, white, and red color scheme; Barre3 uses natural-looking wood to define their studio; SoulCycle dominates the market with the color yellow, F45 uses red, white, and blue colors in its open gym layout. In other words, each of these studios has a defined, unique feel.
In Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp LLC, the plaintiffs, Pure Power Boot Camp, alleged trade dress infringement, among other claims. Pure Power’s trade dress was described and registered as follows:
THE MARK CONSISTS OF A DRAWING OF AN EXERCISE FACILITY, STYLED TO LOOK LIKE A MILITARY BOOT CAMP TRAINING COURSE COMPRISED OF CAMOUFLAGE WALL AND CEILING DECOR, CRUSHED RUBBER FLOORING, A TIRE RUN, CLIMBING WALLS, CLIMBING NETS, AND HURDLES, WITH THE TERMS “DESIRE,” “STRE,” “COURAGE,” AND “UTY.”[79]
Despite this registration, the court had difficulty in identifying the elements of Pure Power’s trade dress because Pure Power kept re-describing and expanding the trade dress.[80] The court considered numerous photographs of the Pure Power facility to analyze the “look and feel” of the facility’s total image.[81] Since there were several iterations of the facility’s description and the company did not register all trademarks with the USPTO, the court had to determine whether the trade dress was inherently distinctive.[82] To decide if the trade dress was inherently distinctive, the court analyzed the functionality of the design.[83]
The court held that “what is distinctive about Pure Power’s trade dress is neither essential to operating a gym, or even a gym with a fixed indoor obstacle course, or to effectively competing in the fitness industry.”[84] Since the design of the facility was not essential to its use or purpose, the design was not functional and, thus, was inherently distinctive.[85] The court also determined that “[t]he Pure Power facility is clearly unlike traditional exercise facilities . . . Pure Power’s combination of arranged obstacles and special military decor did not exist in any indoor exercise facility in the United States at the time Pure Power opened.”[86]
After analyzing Pure Power’s inherent distinctiveness and functionality, the court considered the likelihood of consumer confusion by weighing the eight Polaroid factors.[87] These eight factors are: (1) the strength of the plaintiff’s trade dress; (2) similarity of the trade dresses; (3) proximity of the products in the marketplace; (4) the likelihood that the plaintiff will “bridge the gap” and offer a product like the defendant’s; (5) evidence of actual confusion between the trade dresses; (6) the defendant’s bad faith; (7) the quality of the defendant’s product as compared to the plaintiff’s; and (8) the sophistication of the purchasers.[88] After weighing the Polaroid factors, the court found that Warrior Fitness’s trade dress was not sufficiently similar to Pure Power’s trade dress such that consumers are likely to be confused.[89]
The court found that the “look and feel” of Pure Power and Warrior Fitness are not confusingly similar, nor was there any proof of confusion among customers.[90] The court noted that what was most similar was the general concept underlying the operation of two facilities, which is not protectable as a trade dress.[91] Although Pure Power’s trade dress is strong and designates its source, Pure Power did not show that Warrior Fitness intentionally copied its distinctive trade dress in a way that causes confusion among the relevant subset of customers in the marketplace.[92]
The Pure Power v. Warrior Fitness case demonstrates that a company’s unique, themed space and registration of its trade dress may not be enough to preclude others from imitating parts of the company’s brand. As more boutique fitness brands enter the market, the opportunity for imitation of the proprietary brand arises, and potential clients could be confused as to who is operating a studio if it looks similar to another brand.
Future Questions
A key challenge to setting the legal standard for protecting the intellectual property of boutique fitness is that these issues are often settled outside of the courts, which does not create a body of case law and leaves significant untried territory.[93] With a substantial number of cases settling, there are several unlitigated and unexplored topics.
Genericide
One topic up that requires further discussion is genericide. Genericide is where a brand name becomes the generic term for a type of product.[94] Essentially, when a trademark becomes generic, it ceases to exist.[95] In the Peloton and Mad Dogg Athletics case, the term in question of being generic was “spinning.” If the relevant public primarily understands a mark as describing “who” a particular good or service is, or where it comes from, then the mark is still valid.[96] However, if the relevant public primarily understands a mark to describe “what” the particular good or service is, then the mark has become generic.[97] Words like “escalator” and “murphy beds” were once trademarks but lost their protection from overuse, known as “genericide.”[98]
One example of the difference between a generic phrase and a trademarkable one is when Bikram Choudhury sought trademark registration for “HOT YOGA.” Choudhury owns the registered trademarks “BIKRAM YOGA” and “BIKRAM.”[99] However, the USPTO refused to grant a trademark for “HOT YOGA,” deeming it generic for Choudhury’s services.[100] Another example of genericide is with the word “Pilates.” In 2000, a U.S. District Court in New York found that the term “Pilates” had become the generic term for a particular type of exercise and was not eligible for trademark protection.[101]
As certain brands of workouts grow more popular and become more established, it becomes increasingly difficult for consumers to distinguish between the proprietary brand and the brand that became famous from the original brand.[102] Similar to hot yoga and Pilates, there is the possibility that other fitness brands will become generic as they gain popularity and become more common.
Factors of Infringement
Another topic that lacks discussion is the factors to determine whether one boutique fitness brand’s intellectual property infringes on another. Several things might distinguish a boutique fitness class such as the counts of beats in the music that a class uses, movements, length of class, equipment, sequence of workouts, room temperature, types of classes offered, studio setting and feel, greeters, name, logo, choreography, business models, and pricing. Most cases regarding fitness intellectual property settle; therefore, there is no definite way to know what factors a court will consider, but the factors that distinguish one class from another make sense as possible considerations.
Employment Law
Non-compete agreements in the fitness industry are also a topic of concern. Boutique fitness instructors are passionate, talented, and a reason why clients keep coming back to the same studio. Some studios may want to keep their celebrity trainer or passionate teacher to themselves: studios do not want their superstar instructor also being someone else’s superstar instructor.[103] Additionally, companies do not want to divulge their choreography, routines, or music choices to competing studios. To eliminate competition, studios may ask instructors to sign a non-compete agreement.[104] Non-compete agreements can hinder instructors’ earning potential and benefits and also harm the studio’s staff recruiting.[105]
Many boutique fitness instructors teach at several studios (for example, one instructor may teach at two locations for the same brand) or are even cross-trained (think one instructor teaching two different brands of classes). The terms of the non-compete agreements vary: some do not allow instructors to teach at another studio; some allow instructors to teach at different locations within the same brand; and some allow instructors to teach across brands, just not for the same type of workout (for instance, one instructor being allowed to teach at a barre studio and a boot camp, but not at a competing barre studio).
There is not extensive case law regarding how IP specifically impacts instructors who may teach at different studios. However, in Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, the court held that a non-compete that prohibited employees from working at competitor fitness center anywhere in the world for ten years following employment at the center was unenforceable. The non-compete was unenforceable because it was unreasonable in terms of duration and geographic scope and was ambiguous and overly broad.[106]
However, some studios and brands are asking their instructors to sign intellectual property agreements instead of non-competes.[107] An intellectual property agreement would protect the IP rights of the studio without limiting where instructors can teach.[108] An IP agreement assigns the IP rights to the studio.[109] In other words, an instructor who teaches a specific type of class cannot take the methods to another studio because the former studio owns it. Utilizing intellectual property agreements instead of non-competes may be a solution to the potential issues of the intersection of employment and IP law.
COVID-19 and Virtual Workouts
As a result of the COVID-19 pandemic, many popular boutique fitness brands shifted their typical in-person studios to in-home options for clients. With an increase of virtual workouts, streaming platforms, and fitness apps, boutique fitness companies will likely face new licensing, branding, and IP questions in this uncharted territory.
Conclusion
Boutique fitness poses unique qualities and challenges for intellectual property. While there is a good amount of untried and unexplored territory regarding the IP behind boutique fitness classes, it is clear that consumers are drawn to the strategically managed bundle of intellectual property that boutique fitness encompasses.[110] As more boutique fitness brands and classes become available, the intellectual property in this industry will become more important, and likely more challenged, as the industry continues to grow.
[1] Lucy Connor, Why Boutique Fitness is a Change Not a Trend (Oct. 24, 2019), available at https://www.glofox.com/blog/why-boutique-fitness-is-a-change-not-a-trend/.
[2] Jim Schmaltz, Workouts Aren’t Enough. Your Gym Must Provide an Experience, International Health, Racquet & Sportsclub Association (IHRSA) (March 4, 2019), available at https://www.ihrsa.org/improve-your-club/workouts-arent-enough-your-gym-must-provide-an-experience/.
[3] Zacks, What Is Boutique Fitness, and How Can Investors Profit?, NASDAQ (Aug. 28, 2018), available at https://www.nasdaq.com/articles/what-boutique-fitness-and-how-can-investors-profit-2018-08-28.
[4] Connor, supra.
[5] IHRSA, IHRSA’s Guide to the Boutique Studio Phenomenon, (last visited March 10, 2021), available at https://www.ihrsa.org/publications/ihrsas-guide-to-the-boutique-studio-phenomenon/.
[6] Thomas Gushue, Fitness Companies Give Their Intellectual Property a Workout, Volpe Koenig (Feb. 11, 2020), available athttps://www.vklaw.com/ImagineThatIPLawBlog/fitness-companies-give-intellectual-property-workout.
[7] USPTO, Protecting Your Trademark: Enhancing Your Rights Through Federal Registration (last visited March 10, 2021), available athttps://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf.
[8] Jim Schmaltz, Workouts Aren’t Enough. Your Gym Must Provide an Experience, International Health, Racquet & Sportsclub Association (IHRSA) (March 4, 2019), available at https://www.ihrsa.org/improve-your-club/workouts-arent-enough-your-gym-must-provide-an-experience/.
[9] Gesalt Law, Survival of the Fittest | Fitness Intellectual Property (last visited March 10, 2021) https://www.gestalt.law/insights/survival-of-the-fittest-fitness-intellectual-property.
[10] Susannah Snider, How to Spend Less on Boutique Fitness Classes, U.S. News and World Report (April 26, 2018) https://money.usnews.com/money/personal-finance/spending/articles/2018-04-26/how-to-spend-less-on-boutique-fitness-classes; Lydia Mansel, 9 Reasons Those Expensive Workout Classes Are Actually Worth The Money, Elite Daily (July 20, 2015) https://www.elitedaily.com/women/expensive-workout-classes-money/1111693.
[11] Katherine Rosman, The Boutique Fitness Boom, The New York Times (June 17, 2019) https://www.nytimes.com/2019/06/17/style/boutique-fitness-barrys-soul-cycle-slt-flywheel.html.
[12] Schmaltz, supra.
[13] IHRSA Staff, 2019 Fitness Industry Trends Shed Light on 2020 & Beyond, IHRSA (Jan. 7, 2020), available at https://www.ihrsa.org/improve-your-club/industry-news/2019-fitness-industry-trends-shed-light-on-2020-beyond/.
[14] Chris McElwain, Intellectual Property in Fitness, IDEA Health & Fitness Association (Jan. 17, 2017), available athttps://www.ideafit.com/personal-training/intellectual-property-in-fitness/.
[15] Id.
[16] General information concerning patents, USPTO (Oct. 2015), available at https://www.uspto.gov/patents/basics#heading-2.
[17] McElwain, supra.
[18] Id.
[19] General information concerning patents, USPTO, supra.
[20] Id.
[21] Id.
[22] Gesalt Law, supra.
[23] Id.
[24] Lagree Fitness Method, Rare U.S. Exercise Patent Granted For Lagree Fitness Method In Conjunction with Now Supra Machine (Jun. 28, 2016), available at https://www.prnewswire.com/news-releases/rare-us-exercise-patent-granted-for-lagree-fitness-method-in-conjunction-with-new-supra-machine-300290775.html.
[25] McElwain, supra.
[26] Jeff Hecht, Boy takes swing at US patents (Apr. 17, 2002), available at https://www.newscientist.com/article/dn2178-boy-takes-swing-at-us-patents/.
[27] Lagree Fitness Method, supra.
[28] Multi-axis adjustable exercise machine, Google Patents (last visited March 10, 2021), available athttps://patents.google.com/patent/US9370679B2/en.
[29] Id.
[30] McElwain, supra.
[31] Courtney Rubin, The Nasty Battles Over Solidcore, Washington’s Hottest Gym, Washingtonian (Nov. 27, 2016), available athttps://www.washingtonian.com/2016/11/27/anne-mahlum-solidcore-nasty-legal-battles/.
[32] Id.
[33] Id.
[34] Id.
[35] Emily Codik, Solidcore Faces Lawsuit Filed by California Fitness Guru Sebastiien Lagree, Washingtonian (Sept. 30, 2015), available at https://www.washingtonian.com/2015/09/30/fitness-guru-to-the-stars-sebastien-lagree-files-lawsuit-against-washingtons-solidcore/.
[36] Rubin, supra.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Dave Knox, The Fitness Entrepreneur That May Dethrone Peloton, Forbes (Aug. 22, 2019), available at https://www.forbes.com/sites/daveknox/2019/08/22/the-fitness-entrepreneur-that-may-dethrone-peloton/?sh=2840a5b53d71; Solid Core (last visited March 10, 2021) https://www.solidcore.co/studios.
[43] Rubin, supra.
[44] Peloton Interactive, Inc. v. Flywheel Sports, Inc., Case No. 2:18-cv-00390-RWS-RSP (E.D. Tex. Jan. 20, 2020); Gushue, supra.
[45] Id.
[46] Id.
[47] Id.
[48] Copyright in General, U.S. Copyright Office (last visited March 10, 2021), available at https://www.copyright.gov/help/faq/faq-general.html.
[49] Id.
[50] Id.
[51] Gesalt Law, supra.
[52] Id.
[53] Id.
[54] McElwain, supra.
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Id.
[60] Id.
[61] Gushue, supra.
[62] Id.
[63] Id.
[64] USPTO, supra.
[65] McElwain, supra.
[66] Id.
[67] Jon Porter, ‘Spinning is trademarked, and Peloton isn’t happy about it, The Verge (Feb 18, 2021), available athttps://www.theverge.com/2021/2/18/22289005/peloton-spinning-spin-trademark-mad-dogg-dispute-appeal.
[68] Chavie Lieber, Meet the Company That Trademarked the Word ‘Spin,’ Racked (Dec. 11, 2013), available athttps://www.racked.com/2013/12/11/7631719/the-cycling-patent-debate-that-is-spinning-out-of-control.
[69] Porter, supra.
[70] Whitson Gordon, How a Brand Name Becomes Generic, The New York Times (Jun. 24, 2019), available athttps://www.nytimes.com/2019/06/24/smarter-living/how-a-brand-name-becomes-generic.html.
[71] Id.
[72] Id.
[73] Susan Decker, Peloton Dominates Home Spinning But Rival Won’t Let It Say So, Bloomberg (Feb. 17, 2021), available athttps://www.bloomberg.com/news/articles/2021-02-17/peloton-dominates-home-spinning-but-rival-won-t-let-it-say-so?sref=ExbtjcSG.
[74] Id.
[75] Id.
[76] Id.
[77] Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d 489 (S.D.N.Y. 2011).
[78] Two Pesos, Inc. v. Taco Cabana, Inc. 505 U.S. 763, 768 (1992).
[79] 813 F. Supp. 2d 489 (S.D.N.Y. 2011).
[80] Id.
[81] Id.
[82] Id.
[83] Id.
[84] Id.
[85] Id.
[86] Id.
[87] Id.
[88] Id.
[89] Id.
[90] Id.
[91] Id.
[92] Id.
[93] Kara Krakower, Finding the Barre: Fitting the Untried Territory of Choreography Claims into Existing Copyright Law, 28 Fordham Intell. Prop. Media & Ent. L.J. 671 (2018).
[94] McElwain, supra.
[95] King-Seeley Thermos v. Aladdin Industries, Inc., 321 F.2d 577 (2d Cir. 1963).
[96] Elliot v. Google Inc., 45 F. Supp. 3d 1156 (D. Ariz. 2014).
[97] Id.
[98] Decker, supra.
[99] McElwain, supra.
[100] Anna Rabe, Choosing Fitness Class Names and Copyright, FITLEGALLY (Aug. 31, 2017) https://fitlegally.com/choosing-fitness-class-names-copyright/.
[101] McElwain, supra.
[102] Id.
[103] To Compete or to Non-Compete: Considerations When Drafting Instructor Agreements, Class Pass (last visited March 10, 2021), available athttps://classpass.com/afterclass/to-compete-or-to-non-compete-considerations-when-drafting-instructor-agreements/.
[104] Id.
[105] Id.
[106] 813 F. Supp. 2d 489 (S.D.N.Y. 2011).
[107] To Compete or to Non-Compete: Considerations When Drafting Instructor Agreements, Class Pass, supra.
[108] Id.
[109] Id.
[110] Gesalt Law, supra.
The University of Cincinnati Intellectual Property and Computer Law Journal 
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