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Peloton seems to have a point. Under 15 U.S.C.A \u00a7 1064, a petition to cancel the registration of a mark may be filed at any time on the grounds that the registered mark has become \u201ca generic name for the goods or services for which it is registered.\u201d[5]<\/a> Whether a mark has become generic depends on how it is perceived by the relevant consuming public.[6]<\/a>Different courts have different ways of doing this analysis, but I thought the Ninth Circuit\u2019s \u201cwho-are-you\/what-are-you\u201d test explains it well.[7]<\/a> Under this test, if the relevant public primarily understands a mark as describing \u201cwho\u201d a particular good or service is, or where it comes from, then it is valid.[8]<\/a> However, if the relevant consuming public primarily understand the mark as describing \u201cwhat\u201d the particular good or service is, then the mark has become generic.[9]<\/a> Based on this test, I don\u2019t see how MDA can possibly maintain these trademarks. As Peloton points out in the petition, \u201ceven five minutes of simple Google searching reveal[s] that everyone in the world \u2014 other than Mad Dogg \u2014 understands that ‘spin’ and ‘spinning’ are generic terms to describe a type of exercise bike and associated in-studio class.”[10]<\/a> It\u2019s hard to argue with Peloton there, but, just in case, I did some Google searching myself and it\u2019s pretty undeniable. For example, I googled \u201cspinning near me,\u201d and the first result is Google Maps showing all of the nearest gyms and studios offering cycling classes. None of these places were affiliated with MDA. Moreover, I also stumbled upon the Wikipedia page for \u201cindoor cycling,\u201d where the first sentence reads \u201cindoor cycling, often also called spinning\u2026\u201d, but it makes no mention of MDA in the article.[11]<\/a><\/p>\n <\/p>\n In response Peloton\u2019s petition, MDA called it \u201cmeritless\u201d and claimed that it is \u201clittle more than retaliation for [MDA]\u2019s patent infringement lawsuit filed against Peloton in December 2020 seeking relief for Peloton\u2019s misuse of [MDA]\u2019s patented technology.\u201d[12]<\/a> While it very well be a retaliation to the MDA\u2019s suit, calling it meritless seems pretty, well meritless. And since MDA brought up retaliation, it is worth noting that MDA was forced to file Chapter 11 in 2019 due in part to its inability to compete with Peloton in the in-home indoor cycling market after investing in it heavily.[13]<\/a> In addition, this patent suit comes on the heels of Peloton making over a billion dollars in the final quarter of 2020 alone doing exactly what MDA has failed at.[14]<\/a><\/p>\n <\/p>\n [1]<\/a> See <\/em>Mike Masnick, ‘Spinning’ Trademarked; Gyms Being Threatened For Holding Spinning Classes Sans License, TechDirt (Dec. 29, 2010), https:\/\/www.techdirt.com\/articles\/20101227\/17284312425\/spinning-trademarked-gyms-being-threatened-holding-spinning-classes-sans-license.shtml.<\/p>\n [2]<\/a> See <\/em>Timothy Geigner, Peloton Seeks To Invalidate ‘Spinning’ Trademark Held By Trademark Bully, TechDirt (Feb. 18, 2021), https:\/\/www.techdirt.com\/articles\/20210217\/07425646259\/peloton-seeks-to-invalidate-spinning-trademark-held-trademark-bully.shtml.<\/p>\n [3]<\/a> See id.<\/em><\/p>\n [4]<\/a> See <\/em>Rob Lenihan, Peloton Spin-Trademark Argument Meritless, Mad Dogg Athletics Says, TheStreet (Feb. 23, 2021), https:\/\/www.thestreet.com\/investing\/peloton-spin-trademark-fight-meritless-mad-dogg-says.<\/p>\n [5]<\/a> 15 U.S.C.A. \u00a7 1064 (2006).<\/p>\n [6]<\/a> See, e.g., <\/em>Threshold Enterprises Ltd. V. Pressed Juicery, Inc., 445 F.Supp.3d 139, 148 (2020).<\/p>\n [7]<\/a> See id.<\/em><\/p>\n [8]<\/a> Id.<\/em><\/p>\n [9]<\/a> Id.<\/em><\/p>\n [10]<\/a> Lenihan, supra<\/em> note 4.<\/p>\n [11]<\/a> Indoor Cycling<\/em>, Wikipedia, https:\/\/en.wikipedia.org\/wiki\/Indoor_cycling.<\/p>\n [12]<\/a> Lenihan, supra<\/em> note 4.<\/p>\n
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