I’ve been monitoring CrossFit’s legal activity for several years now. It ranges from indefensible douchebaggery (taking down online parody that is clearly protected by the First Amendment), to valid assertion of their trademark. The case at hand falls somewhere in-between, but I’d generally side with the counterclaimant/defendant, as I did in the PR Cave lawsuit, which was ultimately won by HQ because (frankly) they have more money and a willingness to spend it (this is also why they have been able to take own parody sites and names, when parody is clearly protected under the First Amendment – they are willing to make their critics spend money to exercise a protected right, and their critics are generally not earning an income from their Lulz). Before anyone gets sand in their vaginas, it’s important to note that I don’t always oppose (or support) HQ – I think their lawsuit versus the NSCA is valid and justified, and I hope they prevail. I honestly hope they donkey punch the entire NSCA.
In this particular case, Emergent Legal, in partnership with The Gaw Group,representing 360 Fitness Superstore, has sued to invalidate the “CrossFit” trademark claimed by CrossFit, Inc. Read the full complaint here. CrossFit has attempted to get a preliminary injunction against 360 Fitness, and failed. But this is only the first battle in what could be a long war. And although a countersuit to invalidate their TM is on the table, CrossFit could simply settle out of court before that happens. This would allow them to keep suing anyone who doesn’t have the money to mount a similar (costly) defense (and offense).
Here are the facts: In February, 360 Fitness Superstore was sued by CrossFit for trademark infringement based on their website that advertised the sale of “crossfit equipment.” CrossFit equipment per se, doesn’t exist – it’s equipment from other disiplines that is used by CrossFitters for their training. In April, 360 Fitness answered the complaint and asserted counterclaims against CrossFit, alleging that the CF TM is invalid because:
- CrossFit fails to distinguish its exercises from any others available on the market
- CrossFit makes no attempt to control the content or quality of the exercises taught by its licensed trainers and gyms
- CrossFit has failed to take reasonable steps to enforce its trademark during the 30 years it claims to have used the term in commerce
- Over that 30-year period, the term “crossfit” has become a generic description for a wide range of exercises.
I disagree with most of this. CrossFit is very unique, and no other program has defined itself similarly, even if CF does draw from many prior disciplines. Jeet Kune Do draws from every/any available source, and is 100% unique, even to the point of allowing black belts to modify the curriculum and dogma as they see fit. I don’t believe drawing from prior art is sufficient to claim a practice is not unique. Greg Glassman, the founder of CrossFit, has called it “open source” and to an extent that’s true – you can check out the source code, use it, and modify it to your needs, and do anything else you wish. But if you want to sell it, and use the brand to do so, Glassman wants his shekels; I’ve got no problem with this.
As for the claims that HQ doesn’t make a valid effort to enforce their TM…Enforcing a trademark pretty much means you have to be a douchebag and sue everyone who tries to use it, which CF certainly doesn’t shy away from. But I do agree that the term has become somewhat generic, in that half the people who exhibit any form of epic fail while training, are assumed to be Crossfitters. However, the most glaring fact here, is that there is NO attempt to exert any semblance of quality control. If you don’t control quality, then you can not logically assert that someone’s use of your trademark will hurt the brand (because you’ve made no attempt to prevent – or even monitor – your own licensees from damaging it, ergo you are clearly not protecting it).
These are well-policed issues that have been discussed in depth on social media. CrossFit, and Russell Berger in particular (and The Russells in general), have never shied away from this dialogue, and their position has therefore been made transparent and obvious. I see no logical contradiction in CFHQ’s definitions, but there are numerous practical issues that arise from them. You’re not doing CrossFit unless HQ says you’re doing CrossFit – frankly, although that creates absurd situations, I see no legal issue with it. You might be jumping around like an idiot in spandex, listening to Brazilian Techno, but it’s really not Zumba unless you’re at a class. I’m fine with that. Riding a stationary bike isn’t spinning.
However, although I feel that they’ve mounted a sufficient online defense to their critics viz a viz what defines a CrossFit session, their faux bad-boy personna also works against them in this instance, when they assert potential loss of goodwill (as the personna been more appropriately likened to high-school jock behaviour):
We’ve seen HQ come up against well-funded opponents before, with mixed results (a crushing defeat of Anthos, but a timid “undisclosed, out of court settlement” with MHP). Again, I’m non-partisan here – I’ve been in full support of CFHQ on some issues, and against them on others. In this particular case, since they don’t actually sell or produce “Crossfit Equipment,” I believe anyone selling gymnastic rings, olympic sets, medicine balls, $150 pairs of Reebok shorts, and perhaps even shitty tribal tattoos…should rightfully be able to say that they sell CrossFit equipment.