What separates a freelance personal trainer from a fitness entrepreneur? A big part of the answer is intellectual property.
Intellectual property is a catchall term for a bucket of legal concepts, all directed toward a business's intangible assets. IP includes
- patents that protect new and useful inventions,
- copyrights that protect creative expressions (what media companies call "content"), and
- trademarks that protect brands and consumer goodwill.
The fitness industry is all about IP. A trainer's product is necessarily intangible. For many, that product is you: your knowledge, your work ethic, your energy, your charisma. Unfortunately, as you try to grow your business, those kinds of assets will get spread pretty thin pretty quickly. No matter how charismatic your personality might be, it just doesn't scale very well. If you want to have something to sell besides yourself, you probably need to be thinking IP. Here's what you need to know about IP in the fitness industry.
Patents: Exploiting Your Ideas
Looking to leverage their intangible assets, fitness entrepreneurs often think first of whatever workout routine, format or program they've developed. And, indeed, a sufficiently novel exercise technique could be eligible for patent protection. Training systems that have been patented include SPX Fitness's Lagree Fitness™ Training Method (U.S. Pat. No. 9,370,679) and Dr. Leonard Schwartz's Isotonometrics (U.S. Pat. No. 6,190,291).
If a training program involves unique equipment or devices, these may also be separately patentable. From that 1980s infomercial staple, the ThighMaster® (U.S. Pat. No. 5,399,138), to the seemingly endless variations on the common free weight (U.S. Pat. No. 850,964 on a variable-weight dumbbell was taken out in 1907), fitness gear has a long and robust history of patents.
With patent in hand, not only can trainers with a unique training system prevent competitors from copying it; trainers also can permit others to use that system in exchange for a fee—a business arrangement called "licensing." Licensing plays a tremendous role in the fitness industry, allowing entrepreneurs to monetize their IP and quickly scale their business without hiring legions of employees in gyms and health clubs all over the country.
Many trainers, however, will face an uphill battle protecting exercises or workout regimens in and of themselves. Few ways of moving the human body yield such unexpected results that they clear the patent hurdles of novelty and non-obviousness. Even if they do, "method patents," as patents on steps of instruction and other nonmaterial innovations are called, can be notoriously difficult to obtain. (Equipment, obviously, is a different story.)
Furthermore, while the costs of obtaining a patent vary considerably depending on who prepares the application and what the nature of the technology is, the investment is nearly always substantial, running easily into the tens of thousands of dollars and often presenting a daunting obstacle for fledgling fitness businesses. What's more, even if trainers manage to patent their workouts, the scope of protection may be less than ideal. An exercise routine may contain innovative elements, but if those elements are not its core appeal, competitors may be able to make trivial changes in order to circumvent the patents.
Regardless, if you think patents may be part of your business strategy, it's important to act fast. From the first time you sell or otherwise publicly disclose your innovation, you have only 1 year to patent it. That means that if more than a year has passed since you first used your novel method or equipment with a client, you're probably out of luck.
Copyright: Exploiting Your Content
You may not be able to protect your training system itself, but if you use instructional manuals or videos to teach that system, you can definitely protect those items.
Copyright gives you the exclusive right to reproduce or distribute works of expression that you create. Fitness companies like Beachbody®, owner of the P90X® workout regimen, make their money not by monopolizing their training technique, per se—most elements of which could probably be legally copied by others—but by packaging that training system and controlling its distribution.
Copyright is relatively easy to secure. It arises automatically when you record your expression, whether on paper or on digital video. Registering your work with the U.S. Copyright Office provides additional advantages, such as the ability to seek statutory damages from infringers, and registration is fairly straightforward and inexpensive. Usually, therefore, the biggest IP investment for media-focused fitness businesses is combating piracy. Beachbody, for example, is notoriously litigious when it comes to unauthorized copying of its P90X videos.
In addition to selling media products directly to consumers, many fitness businesses take advantage of copyright by licensing content to authorized instructors. For example, Zumba® provides licensees with original music to which their dance fitness classes are choreographed. Similarly, Les Mills' BODYCOMBAT™ licensing program involves obtaining the rights to popular songs and sublicensing them to instructors; this removes a potential legal obstacle to providing pop-scored fitness classes, and it creates additional value for licensees.
Even if you don't plan to make exercise videos, sell nutrition guides or license out soundtracks, thinking about copyrights as among your business's intangible assets is worth it. Your website content and marketing materials are protected by copyright, and they indirectly add value to your business even if you're not directly selling the content.
Trademarks: Exploiting Your Brand
One asset that nearly every trainer and fitness business has is a brand. Your brand embodies your reputation for achieving results, and it consolidates the goodwill generated by satisfied clients, positive word of mouth and marketing investments. You may not have an exercise method patent to license or a market for your workout videos. But if your brand has value, you can begin to expand your business beyond that limited pool of clients with whom you have direct contact. You do so by protecting and leveraging your trademarks.
Trademarks can be words or pictures or just about anything that consumers use to differentiate products or service providers. Trademarks give you the right to prevent competitors from using markings similar to yours—which not only prevents counterfeiters and imposters from stealing your customers but also keeps your brand recognizable and distinctive.
For information on how to register a trademark, see the sidebar "Registering Trademarks."
Why Get a Trademark?
One way that trademarks help trainers build their business is by allowing them to transcend their own circumscribed spheres of contact. No matter how in-demand your services are, you can serve only so many clients in a day. By bringing others under the umbrella of your trademarks, you can share and expand your reputation beyond your personal relationships.
For some, this might mean taking on employees or partners, but many fitness brands have also found great success in licensing their trademarks. Just like licensing a patent or licensing copyrighted content, licensing a trademark means giving other people permission to use it, usually for a set fee or for some share of their earnings. The promoters of fitness programs like Zumba, CrossFit® and BODYCOMBAT might frame their relationships with instructors in different terms—emphasizing the value of their instructor training or certification process or the access they provide to an instructor support network—but the principal product they're selling is the permission to call your services "Zumba," "CrossFit" or "BODYCOMBAT" without running afoul of trademark law.
Whether it's employees or licensees who are using your trademarks, it is crucially important that you maintain some ability to supervise or at least audit their services. Not only will poor quality control dilute and diminish the value of your brand, but also a failure to regulate the use of your trademarks can result in a loss of your legal rights. After all, if the markings that consumers associate with your business no longer stand for anything, they cease to function as trademarks.
The Problem of "Genericide"
Fitness brands are also uniquely vulnerable to what's called "genericide." This is where a brand name becomes the generic term for a type of product. Words like aspirin, linoleum, cellophane and even elevator started out as trademarks but gradually lost their value as designations of origin. Brand names like Xerox® and Kleenex® continue to push back against the specter of genericide.
Genericide looms large in the fitness world, because it's often difficult for consumers to distinguish between a proprietary brand and the type of workout made famous by that brand's owner. For example, in 2000, a U.S. District Court in New York found that the term "Pilates" had become the generic term for a particular type of exercise, despite several U.S. Patent and Trademark Office registrations owned by the plaintif for the mark PILATES [Pilates, Inc. v. Current Concepts, Inc., 120 F.Supp.2d 286 (S.D.N.Y. 2000)]. Similarly, Zumba has to be ever-vigilant that "zumba" does not become shorthand for a Latin music–inflected group fitness class, just as CrossFit must work to ensure that comparable techniques aren't called "crossfit training."
Protecting Your Assets
Whether it's your brand, your content or your ideas, the most valuable assets of your fitness businesses are intangible. In many cases, the only way to scale up a fitness business is to leverage the exclusive rights to those intangible assets by securing the intellectual property embodied therein.
Once your IP is protected, you can turn this exclusivity into a competitive advantage or, as many successful fitness companies have done, you can monetize your IP with licensing deals. Either way, if you're not focused on your intellectual property, you may find that you don't have much to sell beyond yourself.
You develop trademark rights simply by using your mark in commerce, but most IP-savvy business owners will also register their marks with the U.S. Patent and Trademark Office, which provides a number of important legal advantages. USPTO registration can be done online through uspto.gov, and many business owners choose either to do it themselves or to use a selfhelp tool like LegalZoom®. However, trademark registration does involve a number of complex legal issues, and it is not uncommon for do-it-yourself applicants to screw it up, for which reason it is often a sound investment to consult with an experienced trademark attorney. Even if you hire a lawyer, the cost of obtaining a trademark registration is generally modest in comparison to obtaining a patent, and for most businesses—especially those in the fitness industry—it's worth it.
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