The use of trademarked goods in film and television always draws a great deal of attention and confusion. This week HBO’s “Sex and the City” sequel series “And Just Like That” drew tremendous attention when a favorite character from Sex and the City, “Mr. Big,” played by Chris Noth appears briefly in the debut episode only to die of a heart attack as a result of riding a Peloton exercise bike. Since the episode included an actual Peloton instructor, there have been inferences that the product was initially licensed for product placement or that the use had been approved. According to a report from Mediapost:
“After the first two episodes of “And Just Like That” were released last Thursday, Peloton spokesperson Denise Kelly said that while Peloton was aware that the show would feature one of its bikes — and even approved the instructor being integrated into the story — the company did not supply the equipment or pay for a placement, and was not apprised of the plot or the context in which the bike would be portrayed.”
Confusion has grown because the New York Times reported the story focusing on product disparagement. Professor Alexandra J. Roberts (University of New Hampshire, Franklin Pierce School of Law) instead correctly noted that that federal trademark antidilution law “explicitly carves out ANY fair use, including nominative fair use, AND noncommercial use — as in use in an expressive work.”
More generally, trademark owners do not have the right to control the depictions of their products when shown in films and television or described in books and games. There have been situations where a product has been misused that create the potential for liability, but these situations have not resulted in precedential case law.
Peloton has had a very bad quarter, and the Sex in the City feature did not help. By turning to social media rather than to lawyers, however, the company’s response has been as good as anyone could hope. A short ad produced by Ryan Reynolds features both Chris Noth and real-life Peloton instructor Jess King. King tells Noth he looks great, to which he replies that he feels great. “Let’s take another ride,” Noth adds, because “life’s too short not to.”
The controversy will hopefully help brand owners the power – and the limits – of their trademarks in expressive works. And it reminds everyone that the best revenge is just a good laugh.