Gold's Gym is known as the "Mecca of Bodybuilding" and is famous for being the training ground for some of the world's most renowned body builders (with the Venice Beach, California location having been featured in the iconic 1977 docudrama about lifting, Pumping Iron), and where powerlifters are routinely pushing the limits of physical fitness. Despite this reputation, however, it was cardio equipment, rather than the heavy weights, that caused the gym to sweat out a lawsuit. On January 8, 2018, AnneMichelle Johnson (the "Plaintiff") filed a premises liability claim against Gold's Gym Rockies, LLC (the "Gym"), alleging that the Gym was responsible for injuries the Plaintiff sustained while using a broken rowing machine in a Colorado Springs Gold's Gym in January 2016 (Johnson v. Gold's Gym Rockies, LLC, No. 18-cv-0047 (D. Colo. Mar. 11, 2019)). Striking a pose, the Gym responded by filing a motion for summary judgment, arguing that the Gym's membership agreement (the "Membership Agreement") released the Gym from any liability arising from the use of its exercise equipment and machines. Not needing a spot to render its judgment, on March 11, 2019 a Colorado federal district court judge granted the Gym's motion, holding that it was "irrefutable" that the exculpatory provisions in the Membership Agreement "clearly reflect[ed] an intent to extinguish liability for Plaintiff's type of claim, and that Plaintiff's alleged injuries [were] the type of injuries contemplated by the Membership Agreement." After only one set, the Plaintiff's tort claims were dismissed. 

In the complaint, the Plaintiff alleged that the Gym had a duty to exercise reasonable care, including the duty to put an "Out of Order" sign or other notice on broken workout machines. Additionally, the Plaintiff alleged that the Gym had actual knowledge, or alternatively should have known, about the danger presented by the broken rowing machine and that the Gym's failure to warn the Plaintiff about that danger caused the Plaintiff's injuries. Ultimately, this turned out to be a fairly run-of-the-mill tort claim in which the Gym avoided without breaking too much of a sweat by trotting out the waiver provisions of its Membership Agreement.

In response to the complaint, the Gym quickly filed a motion for summary judgment in which it challenged the strength of the Plaintiff's arguments, and argued that the Membership Agreement released the Gym from liability for the Plaintiff's claims. More specifically, the Gym argued that at the time the Plaintiff executed the Membership Agreement, she understood the terms of the Membership Agreement, the possibility of gym equipment failure and the inherent risk of injury when exercising. In support of its argument, the Gym pointed to both the "waiver of liability" and the "assumption of risk and indemnification" provisions in the Membership Agreement, which, it argued, were clearly labeled, underlined, and written in bold font with all capital letters, making it more likely that the Plaintiff noticed these provisions when reading the agreement.

In an attempt to keep up with the Gym's legal calisthenics, the Plaintiff filed a response to the Gym's motion on September 13, 2018, arguing, among other things, that the Gym's exculpatory provisions were not enforceable because they were ambiguous with regard to injuries caused by defective or broken exercise equipment. The court noted that under Colorado law, when looking at whether exculpatory provisions were clearly expressed, it must examine the actual language of the agreement for "legal jargon, length and complication," and "any likelihood of confusion or failure of a party to recognize the full extent of the release provisions." 

Upon review, the Plaintiff's argument ultimately proved unavailing, as a Colorado federal judge granted the Gym's motion for summary judgment in March 2019. In doing so, the court analyzed the Membership Agreement and found that the language in the exculpatory provisions was clear and unambiguous, and that the provisions were not overburdened with complex legal jargon or inordinately long (as the provisions were less than a half a page long). The court also cited the clarity of the presentation on the page, as each waiver provision had its own subheading in underlined, bold font and capital letters. The court also rejected the Plaintiff's argument that the Membership Agreement did not specifically list injuries from broken or defective machines in the waiver of liability provision, finding that other exculpatory provisions of the Membership Agreement covered injuries from defective machines and that her claim concerning the Gym's alleged negligence for not putting an "Out of Order" sign on the rowing machine before the Plaintiff used it was clearly covered as the Agreement exculpated negligence liability  ("MEMBER VOLUNTARILY AGREES TO ASSUME ALL RISKS OF PERSONAL INJURY TO MEMBER . . . AND WAIVES ANY AND ALL CLAIMS OR ACTIONS THAT MEMBER MAY HAVE AGAINST GOLD'S GYM . . . FOR ANY SUCH PERSONAL INJURY . . . INCLUDING, WITHOUT LIMITATION: . . . INJURIES ARISING FROM GOLD'S GYM'S NEGLIGENCE, WHETHER DIRECT OR INDIRECT").

As a result, the kettlebells hit the floor and the court held that the Plaintiff had waived any claims against the Gym for the injuries she sustained. Despite the Gym's victory in this suit, it is possible that the bar will be re-racked as the Plaintiff is reportedly considering an appeal – suggesting that the district court decision may have just been the warm up.

Elliptical machines provide gymgoers with a challenging cardio exercise and for two equipment makers, this exercise machine has recently provided a strenuous legal workout. Back in the March 2018 edition of Three Point Shot, we detailed the Texas district court's ruling that awarded licensing royalties to fitness equipment maker Nautilus Inc. ("Nautilus") in its dispute with its rival ICON Health & Fitness Inc. ("ICON") over whether ICON owed royalties under a license agreement for a Chinese elliptical-machine patent.  More recently, the Fifth Circuit confirmed the lower court's decision awarding fitness equipment maker Nautilus $1.8 million in its lawsuit against ICON. (Nautilus, Inc. v. Icon Health & Fitness, Inc., No. 18-50097 (5th Cir. Feb 22, 2019) (per curiam)).

In 2004, Nautilus and ICON entered into a Patent Licensing Agreement (PLA), under which ICON received a non-exclusive license to certain Nautilus patents in exchange for paying Nautilus a five percent (5%) royalty on all licensed "Products" that ICON made or sold during the term of the respective patents.  The PLA defined "Products" as "any apparatus, systems or products covered by at least one Claim of any of [Nautilus's] Patent Rights."  All of the patents licensed under the PLA – which pertained to "front-end" elliptical exercise machines – expired in January 2015, except for Nautilus' Chinese patent, which expired in January 2016.  In December 2015, ICON pressed pause on its royalty payments for the Chinese patent, arguing that the manufactured-but-unassembled elliptical machines sold to American customers did not infringe the Chinese patent and thus did not qualify as a "Product" under the PLA.  Because ICON manufactured and sold a partially assembled machine, it contended that it did not manufacture anything "covered by" Nautilus's patent for a fully assembled machine.

In response, Nautilus dialed up the resistance.  In January 2016, Nautilus sued ICON for breach of the PLA, and then, in March 2017, both parties cross-moved for summary judgment on the contract claim.  In January 2018, the lower court granted Nautilus' motion and denied ICON's, finding that, under applicable Chinese law, ICON infringed Nautilus's Chinese patent by including an assembly instruction manual with all of the necessary component parts of the elliptical machines (that were fabricated and packaged, but not finally assembled in China).  By including the manual, according to the lower court judge, ICON had effectively manufactured the infringing products under Chinese law.  Consequently, the district court held that ICON had improperly withheld royalties, and hit ICON with a $1,782,608 judgment.

Although ICON attempted to stride against this judgment, the Fifth Circuit upheld the decision, finding unpersuasive arguments that the lower court had misinterpreted Chinese patent law.  After accepting the lower court's interpretation that Nautilus's right to royalty payments under the PLA is "coextensive" with its right against infringement, the court examined whether ICON's activities infringed the patent.  At the district court level, experts agreed that, to infringe a patent, the infringing party must "practice" all elements of the patent (the "all-elements rule") within China.  However, the experts disagreed on whether the all-elements rule requires structural relationships to be practiced through full assembly, or whether those relationships can be practiced through partial assembly accompanied by instructions.  ICON argued that such structural relationships may only be practiced through full assembly, which was not the case for the elliptical machines at issue, and thus that the district court improperly closed a "gap" in Chinese patent law.  The Fifth Circuit rejected this argument, finding that no "gap" exists in Chinese law, and refused to reverse the district court for "improperly filling" it.

ICON was not dissuaded by the uphill battle presented by these two unfavorable judicial decisions.  Instead, in March 2019, ICON petitioned the Fifth Circuit for both a panel rehearing and an en banc rehearing.  In the former, ICON insisted that, under Chinese law, only "manufacture" of the patented product is prohibited, and that because the elliptical machines were disassembled when shipped, ICON could sell the machines without having to pay royalties.  In its petition for an en banc rehearing, ICON claimed that Chinese patent law has the same "features" of prior U.S. patent law regarding the export of unassembled parts (before it was amended by Congress), and thus the court should have looked to a certain U.S. Supreme Court precedent as guidance about what "manufacture" might mean under Chinese patent law.  However, in what appears to be the final sprint, the Fifth Circuit ended the long workout and denied ICON's petitions in a brief two-page order.  Thus, Nautilus seems to have finally crossed the finish line in first place.

In the July 2018 Edition, of Three Point Shot, we wrote how an author of an unpublished novel that depicts certain dramatic events around a small college baseball team alleged that the author of the hit college baseball novel "The Art of Fielding" misappropriated plot and setting elements to create an infringing work that was "substantially similar" to his own manuscript.  Last year, a New York district court dismissed the copyright infringement suit, finding that, when read in context, none of the plaintiff's allegations of substantial similarity between the plaintiff's manuscript and "The Art of Fielding" held up.  On appeal, the plaintiff lost the second game of the doubleheader in February 2019 when the Second Circuit affirmed the dismissal, holding that many of the alleged similarities in the works were unprotectable abstract ideas or scènes à faire, "similar only at a high level of abstraction." (Green v. Harbach, No. 18-2078 (2d Cir. Feb. 6, 2019) (Summary Order)).