Peloton wasn't thrilled to see its spin bike in 'Billions' premiere. The show is likely safe on trademark grounds.
The complexity of the law leads to paranoia and misunderstandings on film sets. I’ve been on sets where production turns around every cereal box.
A particular exercise product made a surprise appearance Sunday in the sixth-season premiere of Showtime's "Billions." I'll spare you any spoilers and simply say Peloton wasn't thrilled with a scene involving one of its spin bikes. The company put out a statement making clear it didn't sign off on its brand being used in the show.
Whenever headlines mark situations like this one, I'm reminded of the oft-asked but seldom-understood question of trademarked product use in film and television productions. The inquiry is usually phrased as either, “How can they get away with that?” or “Is it OK if we do that, too?”
As an entertainment attorney with experience in intellectual property and related areas, I can shed some light. With a standard caveat – you really need to pass the specific details of your situation by your lawyer; no, really, you do – I can provide a general sense of what the issues are and hopefully indicate when a production may want to put its law firm on speed dial.
Trademark and similar law
Let’s start with a quick and dirty traipse through trademark and related law. In short, a trademark is a limited, compartmentalized type of protection that helps the maker of a product guard against consumer confusion.
If an average consumer of the product would not be confused that the thing they’re looking at is actually made by the company that holds the trademark in the appropriate category of uses, then there is no problem with trademark. If there's confusion as to who made the thing, there's a potential problem.
Is this escapism? I can't make myself care about mean or evil TV character
But there are trademark-like protections, such as the Lanham Act, that protect “reputation” in different ways. For example, if a certain company produces an ad that misrepresents what a competitor’s product is or can do, that’s a problem. If the references to the other company’s product are more prominent in the ad, leading to confusion that a smaller company’s product might be made by the more reputable company, that's another problem.
Various other laws are targeted to prevent product libel or dilution of perceived quality or value in a marketplace. Each group of laws and statutes is specific to a very narrow wrong with very specific parameters that must be met to find fault with the other party.
Using a product in a film or TV show
The complexity of the legal aspects above leads to a lot of paranoia and misunderstandings on film sets. I’ve been on sets where production is frantically turning every soda can and cereal box around so no logos or trademarks are seen.
Have you ever caught a glimpse inside the kitchen cabinets on an old episode of "Seinfeld"? Who keeps their cereal boxes aligned so all they see are the ingredients lists?
Final 'Jeopardy!' answer:'Who is Amy Schneider'? The category? Champions, of course.
I’ve also been on other sets where products take center stage, almost as if they were a product placement or ad because it “looks good there,” without any thought to whether it would look good for the company’s reputation to be placed there. And I would love to be able to tell you one of the above situations is always right and the other is always wrong. It always depends on the particulars.
Pseudo rule of thumb
Each situation should be considered on a case-by-case basis – again, if you're making a TV show, you should really ask your own lawyer – but, in general, there is a good general rule for scriptwriters to keep in mind.
If you are using a product exactly as it is supposed to be used by the consumer as a natural consequence of the created scene, you’ll likely be OK, legally, to write that product into the script and produce the episode or film.
That's how "George of the Jungle 2" got away with using Caterpillar earth-moving machines to dig up a rain forest. Caterpillar objected to the company's equipment being depicted without permission as instruments of evil and filed a lawsuit. They claimed their trademark was infringed, tarnished and diluted. But the judge ruled that the filmmakers depicted the bulldozers being used as you would expect bulldozers to be used.
As seen on TV:Heart attacks while riding the Peloton. Should you be concerned?
So if a writer wants to put a Peloton exercise bike in a scene where the character is exercising on it and “something happens,” it’s probably OK. But as a savvy business approach, you might just want to type “exercise bike” in the script and let the set dressers pick which one. Otherwise, you might end up having a lawsuit end like the “Vanna White Robot” case did.
After all, if a company has gone to all the trouble to protect their brand by registering a trademark and other protections for it, they just might be litigious, even if they are not likely to win. It’s all down to the particulars, and those are only certainly decided for each particular case after an expensive lawsuit regardless of who wins.
Christopher J. Schiller is a media attorney with expertise in intellectual property and related areas.