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A Tale of Two At-Home Exercise Bikes

Indoor cycling has become one of the most competitor spaces in the fitness market, with many popular studios vying for consumers’ attention. Companies such as SoulCycle, which is now international, and Los Angeles-based Cycle House offer cycling classes where an instructor and participants exercise on stationary bikes with the instructor and music combining to motivate the riders. Peloton, on the other hand, offers a fitness experience unique and disparate from that previously offered by indoor cycling studios and gyms. Launched in 2012, Peloton is a high-tech fitness company known for its popular and trending home-fitness bike. In merely six years, the company has delivered more than 250,000 bikes and maintains over 600,000 active riders.

To adequately protect its novel technology, Peloton applied for and was granted two patents, United States Patent Nos. 9,174,085 and 9,233,276, for an “exercise system and method.” The disclosure delineates the limitations of class-based fitness experiences. In particular, such classes are only accessible at specific times and locations, which may not be convenient or available to some consumers. Moreover, such studios have limited space with classes often selling out even for those users in a location convenient to the studio. As such, Peloton Interactive, Inc. invented and developed an at-home fitness bike which incorporates a tablet screen to permit the user to watch the instructor, view their statistics, and compare their performance to other riders.

In November 2017, Flywheel Sports, Inc. launched its FLY Anywhere bike, also designed for at-home use. Flywheel launched in 2010 and has historically offered studio-based cycling workouts. Since its inception in New York, Flywheel now has 43 studios across the nation. Peloton filed a lawsuit in the United States District Court for the Eastern District of Texas in Marshall, Texas against Flywheel accusing it of offering a copycat version of its home-fitness bicycle. Peloton claims Flywheel’s FLY Anywhere bike uses Peloton’s technology to stream live and on-demand classes, track the rider’s performance, and compare the rider’s statistics to other riders. The Peloton bike starts at $2,245 and all of its machines come standard with a screen. Flywheel’s bike, on the other hand, runs around $1,699 and consumers must pay extra to have a screen included on the bike itself. Both machines require users to pay extra to subscribe to the classes.

Interestingly, in early 2012, Peloton and Flywheel engaged in discussions regarding a potential partnership. Per these discussions, Peloton was to be the interactive arm of Flywheel, focused on developing the at-home cycling business utilizing Flywheel’s instructor-led, studio-class content. Meanwhile, Flywheel would continue to run its existing studio cycling businesses. While Flywheel was initially interested in the partnership, the deal ultimately fell through.

Other than these discussions in 2012, in its complaint, Peloton claims that it had another run-in with Flywheel, albeit unknowingly. Three months before Flywheel’s new bike was announced, a Flywheel investor, Michael Milken, approached the CEO of Peloton, John Foley when Foley, Milken, and other chief executives attended a private investment conference. Milken allegedly pressed Foley for details about Peloton’s technology and business strategy, presenting himself as a potential investor. Milken, however, did not disclose the salient fact that he was a major investor in Flywheel. Instead, according to the complaint, Milken misappropriated this information to facilitate the development, sales, and marketing of Flywheel’s infringing bike.

In its complaint, Peloton details the hard-won journey of the attempt to build the first Peloton bike. The company notes the many technical and hardware challenges and the “dozens of investors” who refused to invest. Peloton explains that prior to its machines, no existing exercise bike had all the features sought after by Peloton, nor were there any existing products that would communicate with bike hardware, or track and analyze rider performance. The complaint further alleges Peloton was the only company to “think beyond the studio experience.” The complaint concludes “[y]et through research, ingenuity, and persistence, Peloton pushed on, working with two core manufacturing partners to design and produce the necessary high-tech, sleek bikes and tablets.”

In response to these allegations, a spokesperson for Flywheel claims this lawsuit is “a classic example of a big business trying to intimidate a competitor out of the marketplace.” Moreover, the spokesperson emphasized the fact that Flywheel launched its “unique and differentiated indoor cycling offering that utilizes proprietary on bike FLY Tech tracking technology and signature features,” such as scoreboards and individual personalized performance trackers eight years ago. By comparison, Peloton only introduced its home indoor cycling experience four years ago, employing many of the features first pioneered by Flywheel.

Ironically, before Flywheel announced any intention to release an at-home bike, Foley boasted that he had no concern regarding competition in the stationary cycling space from companies like Flywheel. Rather, the CEO posited his concern would be targeted at technology companies, like Amazon, coming into the space “versus a content company trying to figure out what Peloton does.” In an interview, the CEO stated that brands like SoulCycle and Flywheel were content companies that are known national brands for their local studios.

Federal Circuit Affirms Termination of CRISPR Patent Interference Proceeding

CRISPR-Cas9 is a revolutionary genome editing technology with a host of potential biotechnology applications and also, the subject of three-year long litigation between leading research institutes. During the period of 2011 to 2012, two research teams, one at the University of California-Berkeley and the other at the Harvard and Massachusetts Institute of Technology-affiliated Broad Institute, were researching the same mechanism simultaneously yet separately. Finally, by the end of 2012, Dr. Jennifer Doudna of UC Berkeley published her findings on how to transform CRISPR from a natural bacterial mechanism into a laboratory-based genome editing tool. In 2013, Feng Zhang of the Broad Institute published a paper outlining the CRISPR process as applied to eukaryotic cells. Then, in April 2014, The Broad Institute received the first of several issued patents for the mammalian use of CRISPR.

While the Broad Institute’s patent applications were not the first CRISPR-related applications to be filed, these were the first that described actual experimental data in mammals. Doudna’s disclosure instead focused on CRISPR in cell-free systems, such as bacterial systems in test tubes. Indeed, Doudna’s invention was not directed to genome editing in eukaryotic cells. The Broad Institute’s issued patents, on the other hand, deal with genome editing in eukaryotic cells, focusing more particularly on its usage in human and mouse cells. This patent granted by the United States Patent and Trademark Office thereby awarded the Broad Institute the exclusive rights to use the CRISPR-Cas9 for eukaryotic cell-editing methods.

Derived from a protein found in Streptococcus bacteria, CRISPR-Cas9 is a gene-editing tool capable of making precise cuts and rearranging viral DNA. CRISPR-Cas9 renders possible a variety of advancements in fields such as medicine, biology, and agriculture. In particular, CRISPR-Cas9 may potentially help to cure genetic diseases such as Huntington’s disease, sickle cell anemia, and cystic fibrosis. Moreover, CRISPR-Cas9 could also produce bespoke bacteria, engineer animal chimeras, and make foods more plentiful and safer. As a result, CRISPR applications in eukaryotic cells, including plant, human, and animal, hold the greatest potential for industry and commercial purposes. It is, therefore, understandable that UC-Berkeley and the Broad Institute would controvert who deserves credit for realizing the CRISPR system in mammalian cells.

Following the issuance of the Broad’s first CRISPR-related patent, Doudna and her collaborators at UC-Berkeley appealed the decision by the patent office. Doudna did so by filing an interference proceeding, which is aimed at determining the priority of multiple patent applications. The United States, and all other countries, utilizes a first-to-file patent system, wherein the right to the grant of a patent for a given invention lies with the first person to file a patent application for protection of that invention, regardless of the date of actual invention. However, at the time the Broad Institute and UC-Berkeley filed their respective applications on CRISPR, the United States followed a first-to-invent system. Invention was defined as (1) conception of the invention and (2) reduction to practice of the invention. An interference proceeding, therefore, determines which party, out of two claimed inventors, is the earlier inventor of the claimed invention. At such a proceeding, the USPTO reviews evidence of conception and reduction to practice.

UC-Berkeley’s position is that Doudna and her team invented the system and that UC-Berkeley’s patents relating to CRISPR overlap the Broad’s patents. Due to this overlap, Berkeley contends that it is the rightful owner of the Broad’s issued patents on CRISPR. In February 2017, the United States Patent Trial and Appeal Board disagreed by ruling that the two patents owned respectively by UC-Berkeley and the Broad Institute applied to different subjects and therefore, do not interfere with one another. UC-Berkeley thereafter appealed that ruling, arguing the wrong standard for obviousness was applied by the Board. Obviousness is a general patentability requirement according to which an invention should be sufficiently inventive, or “non-obvious,” in order to receive patent protection. UC researchers argued it was obvious to test the CRISPR system in mammalian cells and that the Board erred in finding that merely because there was no guarantee the eukaryotic experiment would work, the Broad Institute had satisfied the obviousness standard.

On Monday, the United States Court of Appeal for the Federal Circuit affirmed the Board’s termination of the interference proceeding. The Federal Circuit found that while the two patents at issue do overlap somewhat, the claims subject to the interference proceeding were separately patentable. The decision did not address, however, who invented the specific application of CRISPR-Cas9 in eukaryotic cells nor whether the patents held by the Broad Institute or UC-Berkeley are valid. Indeed, other proceedings may later establish that UC-Berkeley is the actual inventor of the CRISPR-Cas9 system in eukaryotic cells. While the Broad Institute has reflected on this litigation in stating “it is time for all institutions to move beyond litigation,” UC-Berkeley contends it will be “evaluating further litigation options.” Regardless, per the recent result, both parties remain free to exploit their respective patents and applications.

Did You Know?

Rosie the Riveter has been a labor icon since World War II. Indeed, Rosie and her “We Can Do It!” message was used as a symbol of feminism and to boost morale for females working in factories during the war. Artist J. Howard Miller designed the poster in 1943 for Westinghouse Electric, who had hired him to create a series of posters to display to the company’s workers. Interestingly, the name “Rosie” was not originally associated with the picture and instead, the iconic woman was dubbed “Rosie” when the poster was rediscovered in 1982 in the U.S. National Archives.

Brexit and Your Intellectual Property

What impact will Brexit have on your trademarks?

Any person or company holding an EU Trademark (EUTM) must review its position in light of the United Kingdom leaving the European Union at midnight on Friday, March 29, 2019.  The UK government may agree to an arrangement whereby existing rights will automatically transfer, with or without a fee, but currently there is no agreement in place.  It has been the practice that if a trademark was used in the UK and Ireland, that should constitute sufficient use to enjoy protection in all member states.  When the UK leaves the EU, a business may have insufficient use of its EUTM elsewhere in the EU to meet the threshold requirement, thus EU-wide protection could be lost.

A Registered Community Design (RCD) provides wide-range design protection in the EU, including furniture, bicycles, chocolates and clothing and fashion appliques.  After the UK leaves the EU, the RCD will no longer be enforceable in the UK.  Small to medium-sized enterprises (SME) will need to know how to protect designs in the UK post-Brexit.  Businesses and companies with EU domain names will need to identify such names in their portfolio and decide if it is necessary to transfer ownership into an entity placed within the European Economic Area.

If the UK is a key market for the owner of an EU trademark who does not currently have a separate UK trademark, filing a UK trademark application now is necessary in order to ensure continued trademark protection in the UK regardless of the outcome of the withdrawal process.  Businesses are taking action now to protect their intellectual property rights.  UK trademark filings by US applicants have increased by over 150%, filings from China by over 175% and filings from Canada by about 100%.  Although it is hoped that a settlement will make provision for the re-registration of European Union Trade Marks and Registered Community Designs before the UK Intellectual Property Office, if an agreement is not reached, all EU Trade Marks and all Registered Community Designs will become ineffective in the UK after March 29, 2019.

In addition, SMEs will need to know what effect Brexit will have on IP licenses and agreements and it will be important to ensure that any agreements or licenses that are negotiated prior to March 2019 properly address the effect of the UK’s departure from the EU to minimize trading uncertainty.  It is not yet clear what effect Brexit will have on the extensive scheme of EU protections for geographical indications, which include Protected Designations of Origin and Protected Geographical Indications.  Although some of these EU schemes are open to non-EU applicants, the “home” country must provide reciprocal recognition.

What impact will Brexit have on your patents?

Inventors seeking to protect their inventions in Europe may not need to adjust their filing strategies because of Brexit. After the UK leaves the EU, it will still be possible for inventors to obtain protection for their inventions in the UK by filing patent applications directly at the UK Intellectual Property Office.  Brexit will have no effect on UK patents granted by the UK Intellectual Property Office.  Inventors will still be able to obtain protection for their inventions in other European countries by filing European Patent Applications at the European Patent Office.

Omni Legal Group is here to review and protect your intellectual property position.

Red Bull Fights Against Gray Market Energy Drinks

Red Bull recently filed a complaint in the United States District Court for the District of New Jersey against a wholesaler for distributing gray market energy drink products in this country. Intended for sale in South Africa and not in the United States, Red Bull asserted the unauthorized energy drinks violated Federal Drug Administration requirements as well as Red Bull’s intellectual property rights. More particularly, the energy drink giant accused Quality Wholesale Distributors of trademark infringement, unfair competition, and trademark dilution.

Quality allegedly has been involved in the importation, sale, promotion, and distribution of the gray market Red Bull drinks. Such gray market products are authorized for sale in selected foreign countries, such as South Africa, to “reflect differences in terms of language, government regulations and units of measurement,” according to the complaint. Red Bull claimed the gray market products have not been subject to its quality control standards, do not contain adequate universal product codes for tracking, nor do they display beverage container deposit information, as required in many states.

Gray market goods, or parallel imports as they are more properly known, are branded goods sold outside of the brand owner’s authorized distribution channels. Parallel imports are not intended for sale domestically by the trademark owner and may have been formulated or packaged differently for sale in foreign markets. This is distinguishable from counterfeit goods, which are identical but not genuine. In contrast, parallel imports have been produced by, for, or under license from the trademark owner.

While often referred to by trademark owners as bootleg products, gray market goods are actually acquired legally abroad then imported into the United States without the trademark owner’s consent. Because of the legal acquisition of the goods, such actions do not legally constitute trademark infringement under the Lanham Act absent “legal confusion.” In particular, legal confusion will be found where the gray market goods are “materially different” from that of the trademark owner. Courts have looked to a number of different elements in finding “material differences,” including labelling, packaging, structural strength of product components, product composition, and storage of material. Further, services provided with the product, warranties or lack thereof, as well as, the trademark owner’s superior internal quality control standards may also constitute material differences.

Parallel imports remain problematic for both trademark owners and the consuming public. Importation of gray market products can cause the trademark owner to lose its ability to control the quality of goods bearing its brand as well as ensure the goods satisfy United States government regulations. More than that, even if the products are of high quality, often products are tailored to specific preferences of a particular market. Because of this, trademark owners suffer from an inability to ensure United States consumers are receiving goods designed for their consumer tastes. Trademark owner may subsequently lose goodwill if the gray market products negatively impress upon consumers in this country. As to consumers, the parallel import may be formulated for particular conditions, such as weather or different electrical sockets, that exist in other countries but not the United States. Consumers may then be unable to use or enjoy the products due to these disparities.

Remarkably, this is not the first time Red Bull has defended its brand against the unlawful distribution of gray market energy drinks. In 2006, the energy drink company sued a Georgia-based company for its unauthorized distribution of gray market products. In that suit, Red Bull ultimately obtained a $2.1 million verdict and a permanent injunction prohibiting further infringement and dilution. Again, in 2009, Red Bull brought suit in New York claiming gray market energy drinks were being diverted from foreign countries in which the sale was authorized into the United States. Subsequently, the United States International Trade Commission issued a general exclusion order prohibiting the importation of unauthorized Red Bull energy drink products into this country. As a result of this order, the United States Customs Department was to intercept any gray market products from United States ports.

If successful in proving Quality’s gray market energy drinks are materially different from those sold by Red Bull, Red Bull may be able to obtain damages for customer dissatisfaction, diminution in the value of the goodwill associated with its trademark, and loss of sales and market shares to Quality. Red Bull is also seeking attorney’s fees, treble damages, as well as any profits gained by Quality as a result of its sale of the energy drinks. Of course, Red Bull has also requested an injunction preventing the further sale of gray market energy drinks.

Wubba Lubba Dub PUB Closes Down After Allegations of Copyright and Trademark Infringement

A “Rick and Morty” themed pop-up bar, located at the “Wubba Lubba Dub PUB” in D.C., was forced to close down merely one day after opening because negotiations with Turner Broadcasting and Cartoon Network fell through. Drink Company, the entity behind the pop-up, announced intentions to execute this “schwifty” experience without first seeking permission or a license from the network. The pop-up was planned to run from August 9 until October 6 but experienced a one week delay in opening due to hopeful negotiations with Turner Broadcasting. In the weeks prior to the bar opening, an attorney for Drink Company describes settlement negotiations as cordial and covering the usual type of issues, including agreements about placing disclaimers distinguishing the parties and indemnification by Drink Company should a guest become injured in the bar and choose to sue Turner Broadcasting. Then, according to Drink Company, Turner Broadcasting “changed their minds.” The Monday before the bar was set to open, Turner sent a new counteroffer, which, for the first time, included a six-figure licensing fee and requested Drink Company cut down the length of the pop-up by one month.

The cartoon follows the misadventures of alcoholic mad-scientist Rick and his grandson Morty as they travel throughout the multiverse, through space and time. As a tribute to the cartoon, the bar featured decorations and imagery from the show, including wall paintings and hand-sewn plush figures of characters. Even more, the space included life-size recreations of Rick’s garage laboratory and the spaceship used by Rick and Morty in their adventures. Costumes were welcomed and encouraged and the pop-up even included a special entrance for any guests who dressed up as Rick. Specialty themed drinks included aptly-named beverages such as the “Existence if Pain,” “Get Schwifty,” “Pirates of the Pancreas,” “Morty’s Mind Blower,” “Pickle Rick,” “Sleepy Gary,” “Peace Among Worlds,” “Keep Summer Safe,” and “Plumbus.”

Turner Broadcasting based its position on trademark infringement, trademark dilution, copyright infringement, and unfair competition. In particular, Turner was concerned consumers may be confused into believing the network was responsible for the “Rick and Morty” themed pop-up bar. Trademark infringement takes place when there exists a likelihood of confusion as to the source, sponsorship, or approval of goods or services. Similarly, copyright infringement occurs when an accused work is substantially similar to the original expression of the work and is analyzed under the audience test, which would find copyright infringement whenever an ordinary observer would immediately detect the similarities between the two works, without any aid or suggestion from others. Moreover, Turner claimed it worried the experience would not be up to the standards set for Rick and Morty fans, whom the network did not want to disappoint.

On the other hand, Drink Company asserted its pop-up experience qualified as fair use. Fair use is a permitted defense where any copying of copyrighted material is done for a limited or transformative purpose. In essence, fair use includes commentary, criticism, and parody, and provides for the unlicensed citation or incorporation of copyrighted material in another’s work. Drink Company claimed that consumers would recognize the “Wubba Lubba Dub PUB” as a fan tribute and would not be confused into believing Cartoon Network was starting a pop-up bar.

This is not the first time a bar has opened or proposed to open a fan-centric bar pop-up experience that has faced copyright issues. Last September, Netflix issued a playful cease and desist letter to “The Upside Down,” a Chicago-based bar themed to the hit series, Stranger Things. In that case, the streaming giant permitted the pop-up to remain open but requested it not extend beyond its planned six-week run and further that the bar request permission if ever attempting another bar inspired by Netflix intellectual property. Another example was “The Dark Side” bar, which celebrated the release of “The Last Jedi” and launched in Hollywood, New York, and D.C. last November. Finally, “Enter Wakanda” unofficially celebrated “Black Panther” with a throne room inspired by the film, paintings of characters, and cocktails named things like “Vibranium” and “Heart of Wakanda.”

This is not even the first time a “Rick and Morty” inspired bar has opened. In January, an arcade bar in Chicago, Replay, opened a similar experience decorated with fan art of the characters and offered a thematic cocktail menu. Replay had similarly been contacted by Turner Broadcasting but had received permission to operate its pop-up in an unofficial capacity for a truncated period of time. Moreover, the “Wubba Lubba Dub PUB” pop-up space is home to previous fan-centered experiences by Drink Company, including tributes to Christmas, cherry blossoms, and even the royal wedding. Indeed, Drink Company gained initial fame for its prior operation of a Game of Thrones-themed pop-up in the same space. Despite this turn of events, Drink Company has stated it will not be dismayed in future themed pop-up pursuits. Rather, it claims to have learned a valuable lesson: “when it comes to free speech and fair use, Turner Broadcasting/Cartoon Network believes that should only be a joke on the show.”

Disney’s “The Last Days of Michael Jackson”: fair use or copyright infringement?

The Walt Disney Company recently moved to dismiss a copyright infringement lawsuit brought against it by the estate of Michael Jackson. “The Last Days of Michael Jackson,” the subject of the lawsuit, was aired by ABC earlier this year as a documentary television retrospective on the star’s Jackson 5 years to his final days. In essence, the estate claims the documentary features copyright-protected videos and songs owned exclusively by the estate and without ever seeking permission for the same. In response, Disney continues to maintain its documentary constitutes fair use.

In its complaint, Michael’s Jackson’s estate focuses on the irony of Disney’s previous zealously advocation of intellectual property rights. In particular, the estate notes that the entertainment company’s “zeal to protect its own intellectual property from infringements, real or imagined, often knows no bounds.” The estate goes further to cite three sympathetic examples of how Disney used its power to force others to comply with its intellectual property will.  First, the estate cites threats made by Disney against independent child care centers for having pictures of Mickey Mouse and Donald Duck on their walls, forcing the centers to remove the pictures from their walls. Another example is a lawsuit seeking one million dollars brought against “a couple on public assistance” who had been appearing as Tigger and Eeyore at children’s parties. Lastly, and perhaps the most relevant to Disney’s fair use defense, the complaint cites DMCA takedown notices sent by Disney to Twitter, Facebook, and the like, when consumers posted pictures of Star Wars toys the consumers had legally purchased. Through these examples, Michael Jackson’s estate attempts to paint the picture that Disney “has never been shy about protecting its intellectual property.”

In light of Disney’s rigorous intellectual property protection, the estate claims it is particularly egregious that Disney has so blatantly used Michael Jackson’s works without seeking a license from the estate. Indeed, the complaint states “Disney’s passion for the copyright laws disappears when it doesn’t involve its own intellectual property and it sees an opportunity to profit off of someone else’s intellectual property without permission or payment.” Even more, the estate’s grievance is aggravated by the quantity of copyrighted works used by Disney in its special. “The Last Days of Michael Jackson” purportedly used at least thirty different copyrighted works including, “substantial portions of some of Michael Jackson’s most famous music,” such as Billie Jean, Beat It, Don’t Stop ‘Til You Get Enough, The Girl is Mine, and Leave Me Alone. Moreover, the two-hour special features “extensive parts of Michael Jackson’s copyrighted music videos,” including Michael Jackson’s Thriller, Billie Jean, Black or White, and Childhood.

While Disney admits to having utilized “short excerpts” from Michael Jackson’s songs and videos, the company contends its use is “limited.” Disney contends these works are used solely for the purpose of providing historical context and explanation tracing the arc and aspects of Michael Jackson’s life and career. Furthermore, Disney claims that in most instances in its documentary special “well less than 1& of the works” were reproduced.

Disney’s primary argument to Michael Jackson’s estate’s complaint is that its film qualified as a documentary and therefore, that its “limited” use of the copyrighted material was fair game. Specifically, Disney argues that per its right of free speech under the First Amendment and the doctrine of fair use under the Copyright Act, its use was completely permissible. For a use of copyrighted work to be classified as a “fair use,” it must be done for a limited and transformative purpose. Generally speaking, most fair use qualifies as either commentary/criticism or parody. It follows, therefore, that Disney contends it is allowed to limited use of the estate’s copyrighted works for the purpose of reporting on, commenting on, teaching about, and criticizing a well-known public figure.

Michael Jackson’s estate seeks to hold Disney liable for ABC, Inc.’s release of “The Last Days of Michael Jackson” under an agency theory. Specifically, ABC is a wholly-owned subsidiary of The Walt Disney Company. Moreover, the estate contends Disney had knowledge of ABC’s “planned infringing activity” as its General Counsel was sent numerous letters in the days prior to the special’s airing and ignored the last two letters. Based on this knowledge and control, the estate claims The Walt Disney Company can therefore be held liable for ABC’s alleged wrongful conduct of airing the infringing special.

Did you know?

The first microwave was invented by accident in a Raytheon laboratory testing magnetrons. Perry Spencer, the accidental inventor, was a Raytheon employee and self-taught engineer. One day while working near the magnetrons, which are high-powered vacuum tubes inside radars, Spencer noticed a peanut butter chocolate candy bar in his pocket had begun to melt. With this newfound knowledge of how to cook food within seconds, Spencer, together with Raytheon, patented the invention. Two years later, the first commercial microwave oven was launched by Raytheon, cost $5,000 at the time, and approximated 750 pounds in weight and nearly 6 feet in height.

Tesla Recently Settled Dispute Over Farting Unicorns

Billionaire CEO of Tesla and SpaceX, Elon Musk, recently settled a dispute with an artist over a farting unicorn image. Tom Edwards, a Colorado-based potter, first released the drawing of a unicorn farting into a pipe to power an electric car in 2010. The mug featuring the image was consistent with the signature light-hearted cartoons of Edwards’ “Wallyware” brand and contained the phrase “electric cars are good for the environment because electricity comes from magic.” The dispute began last year when Musk tweeted a picture of the coffee mug including Edwards’ work with the caption “maybe my favorite mug ever.” A month later, the billionaire tweeted a copy of an identical cartoon image to promote the new sketch pad feature of Tesla, which allows drivers to doodle on a touchscreen. The cartoon also appeared in a Christmas message to Tesla customers.

After Musk released this image, multiple news sources incorrectly reported that Musk designed and created the image. The artist hired an attorney who promptly sent to Tesla “not a cease and desist” letter but rather “an invitation for all parties to continue to benefit from the whimsical, and amazingly spot on piece of imagery” created by the artist. Edwards’ daughter, Lisa Prank, took to Twitter to call Musk out for his use of the images querying “don’t you think artists deserve to be paid for their work?” The Tesla CEO replied that the image was chosen randomly by a software team as a joke. Musk also asserted that it would be “kinda lame” if Edwards were to sue for money and that, if anything, the attention from Tesla “increased his mug sales.” This dispute has since been settled as the Colorado potter aptly noted that Elon Musk is “really really interesting. But he isn’t above copyright law.”