Intellectual Property

Rowing Toward An Injunction?

It is not hard to see why Hydrow invested in a preliminary injunction motion in this competitor IP case.

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intellectual-property-law-300×169Back in February, I wrote on these pages about my search for a new rower for my basement gym, as well as my excitement upon seeing another IP complaint in the hypercompetitive premium home-exercise equipment space. Since then, I settled on one of the midlevel NordicTrack rowers and have been enjoying the instructive videos and challenging rowing programs (thanks as well to the readers who wrote to me with recommendations). More importantly, the lawsuit I profiled between Hydrow and iFit is already living up to my prediction that the case was a “promising big-ticket IP dispute.” In particular, on April 5, 2022, Hydrow filed a motion for a preliminary injunction against iFit’s “New RW900 Rower,” as well as a more recently released rower available at a lower price point. Thankfully, a redacted copy of Hydrow’s motion recently became available.

It is not hard to see why Hydrow invested in a preliminary injunction motion in this competitor IP case. First, as noted in my original profile of the case, iFit has a history of being an aggressive IP defendant, which puts a premium on Hydrow ramping up its own aggressiveness at every opportunity. As a plaintiff, it can be important to demonstrate your commitment to a case, both with respect to the defendant and also with respect to enhancing the deterrent effect of your filing vis-a-vis other competitors.

Second, preliminary injunction motions are a great way for a smaller plaintiff to test out the strength of its claims before deciding on whether to really pursue their case until the bitter end. Yes, litigating a PI motion can significantly add to the short-term expense of a case. But it can also lead to savings in the long run, irrespective of whether the motion is successful. If the former, the pressure to settle on the defendant is very much enhanced. And if the latter, perhaps the idea of funding a case that has already been judged to have issues becomes less appealing to the IP owner. (On a related note, to the extent that litigation funders get involved in funding competitor IP cases, I would anticipate that funding PI motions is something that would be met with serious consideration. For one, it allows funders to put more capital to work in the case earlier on, thereby enhancing their return upon success. Second, it allows for an early test of the merits of the claim, whereby the funder might decide to parachute out of the investment early if things don’t go well.)

Third, because Hydrow’s case involves design patent and trade dress claims, getting as early as possible a sense of the judge’s evaluation of the merits is of supreme importance to the claimant. Both design patent and trade dress claims have an element of subjectivity to them, at least in the real world, because of the comparative visual nature of the infringement tests that the court is required to apply. In practice, many district court judges like to see samples of the accused product at an initial conference in these types of cases, or at least pictures when the product at issue is too bulky for easy display in the courtroom. As a result, it is no surprise to see that Hydrow’s PI motion is heavy on the pictures, with numerous views of varying  perspectives on offer, along with comparisons of the accused rower to the patented designs and prior art.

In addition to the visual cues, Hydrow’s PI motion tries to establish how the design of the Hydrow drives sales for the company in the competitive indoor rower market. Likewise, Hydrow points out that while iFit had a full line of indoor rowers that it had been selling for a while, it had never really branched out design-wise from what Hydrow deems the iFit “look and feel … a pronounced flywheel, and a non-distinct, basic rectangular base structure.” It was only after the Hydrow entered the market that “iFIT recently launched a redesigned rower it calls the ‘New’ RW900 which was curiously named after an existing model (shown above) to which it bears no resemblance.” That redesign by iFit prompted Hydrow to reach out, with iFit’s rebuff leading to Hydrow’s legal action. Moreover, consistent with iFit’s reputation as an aggressive defendant, iFit subsequently launched a second redesigned model even after Hydrow lodged its infringement claim.

As Hydrow tells it, the impetus for its own design came after extensive collaboration between Hydrow’s founder, a former competitive rowing coach, and a Boston-based design firm. In particular, Hydrow argues that the boomerang-shape of its rower was what sets its patented design apart from the prior art. And it is precisely the boomerang-shape of the redesigned iFit rower that Hydrow alleges is the basis — or in design patent parlance, the dominant feature — of iFit’s design patent infringement. Similarly, Hydrow points to what it terms insubstantial differences between the accused rower and Hydrow’s offering as the basis for its trade dress claim, while also noting how heavily Hydrow has invested in marketing its rower — which in Hydrow’s telling was unique in the market until iFit’s infringement began. In one interesting tidbit, Hydrow’s motion notes that the iFit model undercuts the price of Hydrow’s product by almost $800, which has an outsized impact on market share due to the fact that most purchasers are comparison shopping for these products online.

Ultimately, it is hard to handicap the likelihood of success of any PI motion without seeing the defendant’s response. In this case, a fairly aggressive briefing schedule has been set for the motion, with briefing scheduled to wrap up by June 7. We can imagine that Hydrow hopes for a decision on its PI motion as soon as possible but definitely before the holiday season comes around. As the smaller player, the stakes are high for Hydrow in terms of protecting its reputation as an innovator and premium purveyor. In contrast, iFit seems pretty well-positioned to either litigate this case to the end on the merits, or if things look bleak, either push for a settlement or pivot back to selling rowers with its older design. I will be watching from the shore to see who can pull ahead in this fascinating courtroom regatta.

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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.

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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