Bowflex, Body Flex trade legal jabs. But, wait, there's more…

Still fighting alleged trademark and patent infringement of its Bowflex by Icon's Crossbow in an ongoing court battle, The Nautilus Group now has said anything with the word "flex" in its name could be a target.
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Still fighting alleged trademark and patent infringement of its Bowflex by Icon's Crossbow in an ongoing court battle, The Nautilus Group now has said anything with the word "flex" in its name could be a target.

But when Savvier Inc., promoter of the breathing program called "Body Flex" with infomercial queen Greer Childers, was sued for trademark infringement by Nautilus in January in a Washington state district court, Savvier didn't just sit there. Last month, Savvier LP filed its own suit against Nautilus, also charging trademark infringement, but in a different district court in central California.

But the fun doesn't stop with these two companies and these two suits.

The Body Flex program is still facing a trial in April 2005 stemming from a complaint filed in November 2003 by the Federal Trade Commission (FTC) over what the FTC called "deceptive and misleading claims" about possible results from the program. The program, which promotional material says combines "aerobic breathing with resistance and is designed to be done while sitting down," is touted as being able to be done in "less than 20 minutes per day, all while sitting on your couch and watching your favorite television program." It retails for about $40.

"We thought the claims were fairly egregious," FTC senior attorney Robin Spector told SNEWS®. "Four to 14 inches in seven days? If they said you could 'lose weight,' it might have been different."

But, wait, there's more (as infomercials and ads like to say): Named along with Savvier as a co-defendant in the same January lawsuit filed by Nautilus in the U.S. District Court, Western District of Washington in Seattle, was Impex. Impex did at one time make a gym that carried the name Body Flex, although it does not now, and it registered the Body Flex trademark in April 2003 with the federal U.S. Patent & Trademark Office (USPTO) when it didn't find the name in use. It still legally owns the name. Impex has no relationship to Savvier, other than both being in Southern California.

"We still don't know what's going to happen," Impex co-owner Annie Chung told SNEWS®. "We're exploring our legal options."

As the Nautilus vs. Savvier case has continued through the Washington court, all mention of Impex has disappeared, and a hearing by Savvier on a motion to dismiss the case and transfer it to the California court is set for June 25. In the Savvier-initiated California court case, Nautilus has been ordered to respond, with a deadline now extended to July 6 for that response.

Nautilus declined comment for this story. However, in a June 15 story in The Columbian newspaper in Clark County, Wash., Nautilus President and CEO Gregg Hammann called the Savvier case "nothing more than a legal move attempting to change the venue to a potentially friendlier court." He told that paper he expected Savvier would ask that the case be dismissed once it got there.

Hammann also told The Columbian that the company must constantly guard "against competitors wanting to gain an advantage by naming a product using the term 'flex,'" adding, "We don't like people stomping on that."

Savvier attorney Joseph Costa told SNEWS® that Body Flex has been used by his client for more than 20 years -- before the Bowflex was registered with the USPTO in 1986. Although the company never registered the term, he pointed out that the owner of a mark is often decided based on first use, not a trademark registration. Still, Costa called the lawsuit "frivolous."

"We don't think the marks are 'confusingly similar,'" Costa said. "We don't think consumers will be confused. We think that is a crazy argument.

"And in the unlikely case, the court finds there is confusion, it would be Bowflex that couldn't use the mark any longer," Costa claimed based on the assertion Body Flex used the name first.

Now, back to the FTC: The same Central California court in December denied a request for a preliminary injunction by the FTC to keep Body Flex from continuing to state the disputed claims. Nevertheless, FTC attorney Spector said the company as far as she knows has not run the ads since November. Despite losing the request for a preliminary injunction, if the court were to find in the FTC's favor, the continued ads would "add to consumer injury," she said.

"We will get the opportunity to prove our case," Spector said. "How the judge will rule at trial isn't clear. Just because she denied us the preliminary injunction doesn't mean they will win at trial."

But with nine months until the trial, an out-of-court is still a possibility, she said. SNEWS® legal sources said at least 90 percent or 95 percent of cases do settle before they reach trial, and called on a line used in some legal circles, "A bad settlement is better than a good trial."

SNEWS® View: Suing based on the use of the word "flex?" Sounds crazy to us. Gee, does that mean that equipment manufacturer FLEX Fitness will get sued and have to change its name too? Or maybe, just maybe, everybody in this twisted circle we tried to describe above can just figure it out and put an end to it. Remember, "A bad settlement…." Unfortunately, we don't think this is the last time we'll write, "But wait, there's more."

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