Spoiler alerts: If you have not yet started the “Sex and the City” update “And Just Like That,” you may want to bypass this blog. Don’t worry, my colleagues Randy Shaheen and Daniel Kaufman will be posting about Made in USA and the mail order rules later this week, so you will get your AdLaw blog fix.
As for most women starting their careers in the ’90s or early 2000s, Sunday night was must-see TV for us as we watched Carrie, Miranda and Charlotte (Samantha didn’t return) navigate jobs, romance and friendships, all with impossibly chic wardrobes. So catching up with the was something many of us had been looking forward to (after all, “Succession” just ended and “Tiger King 2” just felt, well, a bit like jumping the shark).
The revival starts as the pandemic is lifting and life is getting back to normal. But some of the things we love from the pandemic remain – quiet dinners in and rides with our favorite Peloton instructor. As someone who was essentially a pandemic meme with her love of her Peloton, with Alex Toussaint’s Club Bangers, XOXO Cody and Sundays with (Ally) Love, seeing Big love his bike and looking forward to his live ride with his favorite instructor, “Allegra” (the phenomenal and quirky Jess King), I had one of those “Sex and the City” “me too” moments we love to have, and as an ad lawyer, I was impressed with the awesome product placement. But as the scene unfolded, Big had a heart attack on his Peloton. Not a look Peloton was likely excited about as it worked hard to recover from its 2019 Christmas ad and recall dramas. Peloton asserts it did not know about the plot twist.
But something brilliant happened. Very quickly, Peloton hired Ryan Reynolds’ content and ad agency, Maximum Effort, to produce an ad over the weekend with Big and Jess King proposing a new ride, noting he is alive and well because “life is too short,” with a voiceover by Reynolds promoting the cardiovascular benefits of regular cycling. Boom – G-E-N-I-U-S. Harnessing the cultural dialogue about your brand to promote it. Well played, Peloton.
We have seen lots of this over the years on the competitive advertising front, and when it is good, it is very, very good. Like the Chicken Sandwich Wars and Mac vs. PC. Often we get calls when a competitor launches a funny comparative ad campaign with an outraged “What can we do about this?” There are lots of options – from sending a cease and desist letter, seeking a TRO or a PI in federal court under the Lanham Act, filing a challenge at the NAD (where the mantra is “humor and hyperbole do not relieve an advertiser of its obligation to support express or implied claims”), or even complain to the FTC or state AGs and hope they will initiate an enforcement investigation.
But another option can be to ditch the lawyers and react with a creative response. Like the Chicken Wars, a successful campaign might even increase demand for both products, a win-win rather than a zero-sum game. It might not always be the right solution, and sometimes a competitor’s claims are so salacious that you have to go the legal route to make the go away. But setting aside the knee-jerk anger and thinking about creative options absolutely should be part of the mix if an acknowledged public response makes sense. While your ad lawyers may play a part in claims support for such a move, clearly we are not the stars of the show the way we would be for a legal attack. But that’s OK; it just might give me more time for a Peloton ride.
