Neither HBO or its new "Sex and the City" sequel series "And Just Like That" -- which turned out to be HBO Max's biggest series debut to date -- were involved in a response ad released by Peloton just 48 hours after a character on the show was shown dying of a heart attack after riding a Peloton exercise bike, a Peloton spokesperson told The New York Times.
The response ad (embedded below), called “He’s Alive,” features Chris Noth, the actor who played the character “Mr. Big,” in a parody alternate universe scenario.
Noth is shown in a romantic fireside interlude with the real-life Peloton instructor Jess King, who was also seen on the show, conducting the online class for the workout that preceded Big’s demise.
After King tells Noth he looks great, Noth says he feels great, and suggests that they “take another ride,” because “life’s too short not to.”
As the camera pans out, we see multiple Peloton bikes in the background, and hear a voiceover saying: “And just like that, the world was reminded that regular cycling stimulates and improves your heart, lungs and circulation, reducing your risk of cardiovascular diseases. Cycling strengthens your heart muscles, lowers resting pulse and reduces blood fat levels. He’s alive.”
The voiceover is by Ryan Reynolds, whose marketing company, Maximum Effort, created the 38-second video.
The video was posted on Peloton’s Twitter account and shared by Reynolds on his own account, with a tweet from @OnePeleton that states simply: “Unspoiler alert.”
As of 7 am this morning, the video had generated about 3 million views, 5,400 retweets, 7,000 quote tweets and 41 thousand likes on the Peloton account, and 993,000 views, 2,300 retweets and 22,000 likes on Reynolds’. In addition, Peloton's already-plummeting stock price, which dropped further after the HBO show aired, was up about 3% in premarket trading on Monday.
In 2019, after Peloton was roasted on social media for a controversial ad featuring a wife being ever-so-grateful for her husband helping her improve her body by gifting her with a Peloton bike, Reynolds helped himself -- and perhaps Peloton's image -- by making a parody ad promoting his Aviation Gin brand that featured Monica Ruiz, the same actress used in the Peloton ad.
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.
Peloton also released a statement from Suzanne Steinbaum, a cardiologist and member of the company’s health and wellness advisory council, that expressed empathy with fans upset by Big’s death, but stressed that the character had lived an “extravagant” lifestyle, “including cocktails, cigars and big steaks,” and that riding his Peloton bike “may have even helped delay” his cardiac event.
Peloton declined to state for the record whether it was involved in any formal product-placement agreement.
Intellectual property and entertainment attorney Nancy C. Prager told The Times that in a placement scenario in which a production company procures a trademarked product for use onscreen, it must get a “special license” to show the product and brand logos. The nominative fair use principle included in trademark law allows production companies to show a trademark “as long as the product is shown being used in a way consistent with the original trademark,” but does not apply when a protected mark is used “in a way that disparages the mark or the brand,” Prager said.
In the attorney’s expressed view, HBO “tarnished Peloton’s good will to consumers,” given that the brand’s products purport to make their customers stronger and healthier.
The tarnish, she asserts, can be evidenced by Peloton’s stock price plummeting (it dropped 11% overnight after the HBO show debuted and continued to decline on Friday), and Peloton could therefore reasonably consider suing HBO — particularly if it really did not disclose the storyline to Peloton in advance.
Still, “at least for the time being, it seems that Peloton is uninterested in pursuing litigation,” The Times concludes.
However, another legal expert takes issue with several of Prager's points.
The Times "seems to conclude that peloton has a strong case but is choosing not to sue," Alexandra J. Roberts, a professor at the University of New Hampshire School of Law who specializes in trademark and entertainment law, posted on her Twitter account. "I think peloton is getting better advice than nyt, b/c it would likely lose a trademark dilution lawsuit & only embarrass itself further if it brought one."
Among other points, Roberts says 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, which a tv show clearly is," she writes. Courts "have also increasingly used the [Rogers] test for inclusion of a TM in an expressive work: the use is not actionable unless it has no artistic relevance whatsoever or explicitly misleads as to the source or content of the work," she adds. That test "tolerates some possible confusion."
The outcome of the Peloton/HBO scenario remains to be seen, of course.
As of this morning, it appeared that HBO had not yet replied to requests for comment from the press.
Back in April, Peloton took another PR hit, when The U.S. Consumer Product Safety Commission issued an “urgent warning” after reports of 38 injuries and one death were linked to its Tread+ treadmill. Peloton initially pushed back, calling the safety warning “inaccurate and misleading,” but voluntarily recalled those machines in May.
Prior to the debut of the HBO show, Peloton’s shares had already lost half of their value in the past month, after a negative first-quarter earnings report perceived as an indicator that the brand’s performance is suffering as people return to out-of-home lifestyles.