And Just Like That… Peloton Learns a Branding Lesson

REPOSTED FROM THE ARCHIVE.

Disclaimer: “And Just Like That…” Episode 1 spoilers ahead.

Image is a screenshot from "Sex and the City".

“And Just Like That…”, an HBO Max reboot of “Sex and the City”, shocked viewers and Peloton executives when a beloved character met a tragic fate by way of a Peloton bike. While Peloton approved of the appearance of its product in the show, Peloton claims it was unaware of the details of the use. Therefore, Peloton did not agree to the way the product was used in episode 1. After the episode aired, Peloton stock dropped 11% overnight and continued to decrease. Given this negative impact, could Peloton sue?

“And Just Like That…” Peloton Bike Feature

At the end of the episode, Carrie Bradshaw’s on-again-off-again love interest, Mr. Big, uses his Peloton bike for his 1, 000th exercise class. Subsequently, Mr. Big dies from a heart attack and is found by Carrie. Pelton was aware that its product would be featured in the episode; however, not that it would be linked to the death of a major character. The sequence of events and the prolonged use of the Peloton bike by Mr.Big creates the negative impression that Peloton’s product causes or has a role in the characters death. Further, it permanently connects the brand to the death of a significant character with fans. However, there is a different interpretation of the scene. The Peloton bike is being used by a character with a heart condition which indicates the issue is with the user rather than the product. The scene is comparable to a character using their cell phone and getting into a car crash. The issue lies with the person not the cell phone or car brands.

In general, “Sex and the City” is a show where brands are essential to developing a character’s identity. For example, Carrie Bradshaw’s love for fashion is embodied in her Manolo Blahnik shoe obsession. Further, Mr. Big is wealthy, so it fits his character to use a high-end Peloton exercise bike (cheapest price being $1,500) rather than a different brand. Roberts, an intellectual property professor at the University of New Hampshire School of :aw, and Lantagne, an intellectual property professor at the University of Mississippi School of Law, state that gaining permission from the brand is not necessary for expressive work.

Could Peloton Sue?

According to Roberts and Lantagne, Peloton has two potential legal arguments, but they are unlikely. The strongest legal argument Peloton could use would be based on a breach of contract. This argument assumes that Peloton had a contract with HBO where the contract states that the appearance of Peloton’s product must be positive. Considering this legal argument requires the existence of an unlikely contract, the most likely legal argument to be used is trademark dilution by tarnishment. However, experts claim that judges in cases similar to Peloton’s situation do not typically side with the brands. Roberts states that while Peloton could meet the threshold of being a household name, tarnishment typically applies when trademarks are diluted by illicit activity such as pornography and illegal drugs. Further, First Amendment case law protects the use of trademarks in expressive works, therefore protecting HBO despite Peloton’s significant stock hit. So, Peloton does not have an easy case which makes its 48-hour ad response featuring the actor of Mr. Big a smart move.