eBay offers fertile ground for infringements: Fitness Quest, Bayou Fitness in legal battles

With several hundred thousand virtual eBay stores on the e-commerce website, any manufacturer or holder of intellectual property needs to be constantly vigilant, monitoring for fraud, counterfeiting or violations.

Two equipment companies recently discovered what they claim is illegal activity and are engaged in lawsuits: Fitness Quest and Bayou Fitness both are claiming infringement of one sort or another (We addressed the problems of eBay in a special feature in our FitBiz by GearTrends® March 2005 journal. Click here to access that store in our GearTrends® archives.)

“Unfortunately, counterfeits are a problem in our industry,” said Kim Raines, in-house general counsel for Fitness Quest. “We monitor eBay.”

Fitness Quest protecting Ab Lounge brand
The Ohio-based brand, known for its infomercial products and now also for its New Balance line of equipment, claimed in court documents filed in the U.S. District Court, Northern District of Ohio, that a long list of individuals from the United States and Canada had each done one or more of the following, together or separately: Violated its Ab Lounge 2 trademark, infringed copyrighted materials related to it, and engaged in selling counterfeit product.

As of Dec. 5, nine of 16 individuals have had the cases against them dismissed “because of resolutions acceptable to both parties,” Raines told SNEWS®. She declined to comment about specifics of the settlements or of the cases still pending that all involved eBay auctions or stores.

She stated that although Fitness Quest monitors eBay regularly, it could not say how long the parties – not all necessarily working together – had been selling the products. Some of the violations included counterfeit product upon which the defendants had allegedly put Fitness Quest’s trademark and some involved the use of copyrighted materials such as advertising, marketing, packaging, videos or user manuals.

In the suit filed in late October, Fitness Quest has asked for compensation for “substantial benefits” gained by the defendants, as well as preliminary and permanent injunctions, damages, fees, and the destruction of all infringing and illegal materials. The court documents note that Fitness Quest has sold an estimated 3 million machines under the name Ab Lounge since August 2003, spent more than $35 million advertising the product, and has sold in aggregate more than $235 million in the product.
 
“Our policy is, we respect the intellectual property rights of others and we expect others to respect ours,” Raines said, “and if counterfeits are discovered, we’ll take appropriate legal action when necessary.”

A tale of two dot-coms: Bayou Fitness and Fitness Bargains
In another suit filed in November, online retailer and equipment supplier Bayou Fitness (www.bayoufitness.com) has claimed that eBay store Fitness Bargains (click here to see the store) has violated Bayou’s non-exclusive license of the use of the technology patented by Total Gym in 1999. That complaint was filed in the U.S. District Court, Southern District of Texas.

In the Fitness Bargains eBay store, the company claimed: “Our patented folding mechanism allows our steel frame to fold within itself.”

Bayou President Jim Berridge declined to comment about the suit to SNEWS® other than to confirm it was still pending. The most recent filing in the case in the Houston Court was an admonition on Nov. 21 by the judge warning against frivolous motions for summary judgment and motions to dismiss.

Interestingly, this is not the first time Bayou, based in Shreveport, La., has brought a case against Fitness Bargains, based in Florida. In February 2005 a complaint was filed for the use of the word “Ultimate” in conjunction with fitness equipment, but that case was dismissed without prejudice in June when a settlement with undisclosed terms was reached.

SNEWS® View: No matter what you think of any company or of eBay, the fact remains that intellectual property is just that: property. That means it is owned by someone, and if that someone is you, we’re sure you are monitoring the web and eBay for violations since they are rampant.