Row, Row, Row Your (Fake) Boat

A promising big-ticket IP dispute recently kicked off in the rowing machine marketplace.

intellectual-property-law-300×169I am in the market for a new rowing machine. My prior one, a Velocity magnetic rower, suffered an unfortunate demise during one of my HIIT (high-intensity interval training) sets, when I managed to completely crack off the plastic rear fulcrum — and barely avoided serious injury when my seat, thereupon, flew right off the Velocity’s newly exposed rear end. Attempts to contact the company for a replacement part were unsuccessful; the manufacturer claimed COVID-related supply chain issues made getting parts nigh impossible. In light of that bad news, I had no choice but to put my trusty aerobic companion out to pasture — or at least on my Brooklyn street waiting for garbage pickup. (Fans of recycling efforts will be glad to know that the rower did not make it through the night, as someone driving by apparently took it for scrap.)

Considering that I was just starting to feel good about adding regular rowing exercises — whether HIIT or more sedate, longer rowing sessions — to my normal exercise regimen of dumbbell lifting, pushups, and ab work, parting with my rower was a disappointment. For me, rowing was the perfect aerobic activity. My chunky thighs and flattish feet mean that I am not built for running; my basement ceiling is too short for boxing or jump rope exercises. And despite my interest in Peloton as an IP litigation participant, it is hard for me to get enthused about riding a stationary bike. As a result, I have been diligently looking at reviews for rowers, while trying to imagine myself caring very deeply in the future about whether my steed of choice uses water, air, or magnetic means to replicate the experience of rowing in the great outdoors.

While I have not yet come to a decision, I have learned that the rowing market is pretty segmented by price and feature sets. For now, I have little interest in a dirt-cheap dumb rower, intrigued as I am by some of the features found on the higher-end machines. But that doesn’t mean that I am ready to splurge on an optioned-out Lamborghini-ish rower either, considering that I was well-suited with the almost seven years of use I got from my former midlevel rower. Despite that experience — which was positive until I found myself barreling straight backward onto my basement floor — I am still considering whether to go with one of the premium machines. In part, I feel myself being spurred on by the ubiquitous offers for interest-free financing for those brave enough to spend $1500-plus on a piece of home exercise equipment. For that money, someone can, of course, expect a smooth ride, quality craftsmanship, durability, and a large Bluetooth/WiFi-enabled screen capable of streaming live and on-demand rowing classes to boot. It is not an easy decision, considering the cost, which is why I have been sitting on making a purchase for nearly a month now. In the meantime, my hamstrings get tighter and tighter for lack of sufficient aerobic exercise.

With this buying decision on my mind, I was super-pleased to see a promising big-ticket IP dispute get kicked off in the rower marketplace. As home exercise equipment goes upscale, in part fueled by COVID-19’s unfortunate persistence in making going to the gym a health risk, the prevalence of companies turning to litigation to protect their market position continues apace. In the latest installment, leading rowing machine maker Hydrow has decided to take on an even-bigger fitness equipment giant, iFit, manufacturer of NordicTrack-branded equipment, in a Delaware district court (Case No. 1-22-cv-0019) design patent and trade dress infringement lawsuit. (Confession — I would love to own either of their products, even as their respective price tags remain a hurdle to overcome.) In particular, Hydrow alleges that the NordicTrack RW900 — the crown jewel of iFit’s rower line — “copies all of the significant aspects of the award-winning design that has led to the success of the Hydrow Rower.”

As is common in consumer products-based IP complaints, Hydrow colorfully describes the origin story of its premium rower, including that was “inspired by three visual concepts: a wave, a 1971 Maserati Ghibli, and the bow of a Stämpfli single scull rower.” I am not an expert in scull rower technology, but a Stämpfli sounds serious and exotic — and therefore just maybe worthy of copying. Hydrow alleges that the RW900 infringes Hydrow’s ‘843 design patent, as well as Hydrow’s allegedly valuable trade dress in the premium rower market. Having just been filed, we do not yet have any indication as to how iFit will respond to Hydrow’s claims. Considering, however, the level of aggression that companies like iFit have demonstrated in other IP disputes, we can expect that their response will be a vigorous one. Even so, there are clearly benefits to Hydrow for having filed the complaint in the first place, from the potential deterrent effect vis a vis other competitors keen to copy Hydrow’s rower, to the marketing boost inherent is standing behind one’s IP against a more established competitor.

Ultimately, it is way too early to handicap which party will win this particular IP litigation dispute. At the same time, it remains interesting to see how the rise of the premium home-exercise market has spawned a spate of IP litigation in its wake. This latest example between Hydrow and iFit should at minimum put us on notice of the high-stakes — and profits — at issue when it comes to IP protection in this competitive marketplace. As tempted as I am to declare that I will commit to buying the product of the winning litigant here, I also know that such a course of action would likely be folly. For one, this case, like nearly every other IP dispute, is likely to settle — making declaring a winner a quite arbitrary pursuit. More importantly, if my hamstrings get any tighter I will likely have trouble tying my shoes. For me, therefore, deciding on a rower is an immediate concern. But it should also be interesting to see who rows hardest and longest in this new case.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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