⏩ Peloton takes the U.S. Patent Office for a “spin”
Welcome to the FORWARD GC, a digestible newsletter with fresh takes on the legal news you need to start your day. Curated by friends at Lawtrades—a marketplace that helps legal people participate and thrive in the internet economy through flexible engagements. Learn more about why we’re doing it here.
If you’re new here, welcome! I’d love to know what you think, so please feel free to reply to this email.
This week: Peloton would really like to use certain word, and Uber loses a major legal decision in England. Plus: Why Merrick Garland is expected to be tough on tech as AG.
🚴♀️ Peloton signs up for a legal class
Peloton can use a lot of words to describe the exercises people do on its core product: biking, cycling, pedaling, etc. But there’s a word it must avoid: “spinning.”
In the early 1990s, the company Mad Dogg Athletics had a wild idea: It started producing a line of sleek indoor bicycles and training courses. They trademarked the names phrases “spin” and “spinning” to describe their products. Later, in 2010, Mad Dogg introduced a spin bike with a screen for the world’s first virtual “spinning” experience.
Indoor bike classes went mainstream: And so did their trademark phrases. But over the years Mad Dogg has won lawsuits challenging its claim to the words.
Along comes Peloton
Peloton blends cycling classes and tech like no company before. In the last year, it has been one of the great corporate success stories of the pandemic. In December, Mad Dogg sued Peloton, claiming its instructor-led bike classes infringed on their virtual class designs.
Peloton responded by going for the gold and asking the US Patent and Trademarks Office to invalidate the “spinning” and “spin” trademarks. It argues the terms have become generic, like escalator.
Mad Dogg will not back down but neither, likely, will Peloton. In its filing, the company wrote, “Enough is enough. It is time to put a stop to Mad Dogg’s tactic of profiting by threatening competitors, marketplaces and even journalists with enforcement of generic trademarks.”
🚖 England to Uber: Your drivers are workers
Uber can’t win everywhere.
After getting friendly treatment from California, the ridesharing giant will have a tougher road to navigate in England.
The UK Supreme Court made a blockbuster ruling: The judges said Uber must classify its drivers as “workers.” That’s not the same classification as employee, but it comes with more responsibilities than someone considered self-employed. Workers, for instance, are entitled to vacation time and minimum wage.
The reasons were obvious to the Court: Uber compromises the independence of the drivers, the court reasoned. That’s because it sets pay rates, tracks them as they drive and imposes other contracts.
Meanwhile in California
As you may recall, citizens voted overwhelmingly in Prop 22 to overturn a law that would have made gig workers, including Uber and Lyft drivers, employees. A state court just threw out most of a lawsuit challenging that ballot measure.
The rest of the US may follow California’s lead (although Joe Biden opposes Prop 22), but the England ruling could have a major impact on Europe. Experts believe gig workers at other companies will file similar litigation in England.
⚖️ Merrick Garland is the new AG, and he may be tough on tech
Remember Merrick Garland? The judge denied even a hearing after his nomination for the Supreme Court by Barack Obama.
After gaining bipartisan support, it’s very likely he will become the top prosecutor in the land as Attorney General.
And it’s very possible Garland will be a difficult, but fair, sparring partner for Big Tech.
Garland knows a thing or two about antitrust law: He used to teach it at Harvard and has written extensively about the subject in legal journals. As a judge, he has made a few decisions on antitrust cases, although he did not author any of the opinions.
He talked about antitrust law during a confirmation hearing this week: He told Sen. Amy Klobuchar he would vigorously enforce antitrust law and called it his “first love in law school.” “The Supreme Court has repeatedly referred to antitrust law as the charter of American economic liberty, Garland said, “and I deeply believe that.”
Even more attention to Big Tech
It’s very likely antitrust investigations will continue under Garland and the federal government. Senators have proposed bipartisan legislation that would increase FTC funding, and Klobuchar has introduced a bill that would expand the scope of antitrust investigations beyond the litmus test of whether consumers are paying too much.
Garland’s appointment is not official yet, but it seems highly likely. Sen. Mitch McConnell has even said he would vote to confirm him.
💌 What else we’re forwarding
Tech companies team up on a Maryland digital services tax: They say the measure, which taxes gross revenue on digital advertising, is preempted by federal law.
The ABA is getting behind student loan reform: The ABA hasn’t gone full “forgive student loans” yet, but the main trade group for the legal industry put the government on notice they’d like to see reform.
🎧 Music we’re working to
Today we’re listening to Ben Prunty, an independent video game music composer. His tracks are dreamy and chill with lots of reverb and filters. This album that portray space as empty, yet still full of energy and suspense. I have this one on loop most of the day.
FTL: Faster Than Light by Ben Prunty (92 min, no vocals)
Spotify | Apple Music | YouTube Music | Google Play
Have a good day.