NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
WORLD CHAMP TECH, LLC, No. 24-2266 D.C. No. Plaintiff - Appellant, 3:21-cv-03202-LB v. MEMORANDUM* PELOTON INTERACTIVE, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding
Argued and Submitted June 3, 2025 San Francisco, California
Before: CALLAHAN, BADE, and KOH, Circuit Judges.
Plaintiff-Appellant World Champ Tech, LLC (“WCT”) has a trademark
registration for “BIKE+” and has produced a mobile app called “Bike+” since
2014. In September 2020, Defendant-Appellee Peloton Interactive, Inc.
(“Peloton”) released a new version of its home exercise bike called the “Peloton
Bike+.” WCT sued for trademark infringement, claiming that Peloton’s use of the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. mark Peloton Bike+ is likely to cause confusion among consumers as to whether
Peloton produces or sponsors WCT’s Bike+ app. The district court granted
summary judgment to Peloton. WCT timely appealed, and we have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the district court’s order de novo and the
evidence in the light most favorable to WCT. See Ironhawk Techs., Inc. v.
Dropbox, Inc., 2 F.4th 1150, 1159 (9th Cir. 2021). We affirm.
“The test for likelihood of confusion is whether a ‘reasonably prudent
consumer’ in the marketplace is likely to be confused as to the origin of the good
or service bearing one of the marks.” Dreamwerks Prod. Grp., Inc. v. SKG Studio,
142 F.3d 1127, 1129 (9th Cir. 1998). In a reverse confusion case like this one,
“[t]he question . . . is whether consumers doing business with the senior user might
mistakenly believe that they are dealing with the junior user.” Id. at 1130. The
analysis is guided by eight factors:
(1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product lines.
Lodestar Anstalt v. Bacardi & Co., 31 F.4th 1228, 1252 (9th Cir. 2022) (quoting
Ironhawk Techs., 2 F.4th at 1160). “These factors are neither exhaustive nor
dispositive; it is the totality of facts in a given case that is dispositive.” Id. at 1252
(quoting Ironhawk Techs., 2 F.4th at 1160). Accordingly, even when certain
2 24-2266 factors weigh in the plaintiff’s favor, summary judgment is appropriate if those
factors are “overwhelmingly offset” by the remaining factors such that “no
reasonable trier of fact could find that confusion is probable.” Id. at 1261 (citation
modified).
That is the case here. The first two factors—mark strength and proximity of
goods—weigh in WCT’s favor. For the first factor, regardless of whether WCT’s
Bike+ mark is descriptive or suggestive, a jury could find that Peloton’s Peloton
Bike+ mark is so commercially strong that it could overtake WCT’s mark. See
Ironhawk Techs., 2 F.4th at 1162-63. For the second factor, a jury could find that
the parties’ products are intended for the “same class” of consumers—those who
bike as a form of exercise—and are “similar in use and function”—offering users
the ability to track metrics while biking. See id. at 1164.
But other factors overwhelmingly favor Peloton. Consider the third factor,
which turns on the similarity of the marks “as they are encountered in the
marketplace.” Lodestar, 31 F.4th at 1260 (citations omitted). Since WCT ceased
paid advertising in 2019, consumers who encounter WCT’s mark primarily do so
in the Apple App Store. There, Peloton’s app may appear alongside WCT’s app in
search results, but the two apps bear no similarity in appearance, especially
because the Peloton app does not use the term “Bike+.” Further, although the use
of house marks “can aggravate reverse confusion” in some cases, this is not one of
3 24-2266 them. Ironhawk Techs., 2 F.4th at 1165. The Apple App Store displays the app
producer’s name alongside the app name and icon, which reduces the potential for
any confusion as to who produces each app. See Cohn v. Petsmart, Inc., 281 F.3d
837, 842 (9th Cir. 2002); see also Lodestar, 31 F.4th at 1260. The mark similarity
factor therefore favors Peloton.
Next, consider the sixth factor, which asks “whether a ‘reasonably prudent
consumer’ would take the time to distinguish between the two product lines.”
Ironhawk Techs., 2 F.4th at 1167 (quoting Surfvivor Media, Inc. v. Survivor
Prods., 406 F.3d 625, 634 (9th Cir. 2005)). This factor similarly favors Peloton.
When WCT applied for its trademark registration, it represented to the United
States Patent and Trademark Office that its app “is not acquired through impulse or
‘rash’ action”; instead, consumers must complete the multi-step process of
searching the Apple App Store, selecting the app they are looking for among
competitor apps, and then entering a passcode or alternative method of
authentication to confirm that they intend to download the app. Again, during this
process, the Apple App Store displays “World Champ Tech” as the producer of the
Bike+ app. Accordingly, a reasonably prudent consumer would identify the Bike+
app as being produced by WCT, not Peloton. See Lerner & Rowe PC v. Brown
Engstrand & Shely LLC, 119 F.4th 711, 718 (9th Cir. 2024) (“[R]egular internet
users can readily distinguish domain names associated with the companies they are
4 24-2266 searching for from those they are not.” (citation omitted)).
Importantly, the fourth factor, actual confusion, also favors Peloton. While
WCT has offered an expert survey finding a net confusion rate of 12%, courts
generally treat rates below 10% as evidence “that confusion is not likely,” 5
McCarthy on Trademarks and Unfair Competition § 32:189 (5th ed. May 2025),
and rates “between 10% and 20%” as evidence that confusion is likely when “other
evidence is supportive,” id. § 32:188.1 Here, the other evidence points in the
opposite direction. The products have coexisted in the marketplace for years, and
hundreds of consumers have downloaded WCT’s Bike+ app during that time. Yet
WCT has no evidence that any of them has experienced any confusion. See Lerner
& Rowe, 119 F.4th at 720 (where 109,322 consumers saw the allegedly infringing
ads and 7,452 consumers clicked on them, but there were only 236 consumer calls
indicating confusion, “[t]he resulting 0.216% confusion rate [was] direct evidence
of the likelihood of confusion comparable to, but more complete than, survey
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
WORLD CHAMP TECH, LLC, No. 24-2266 D.C. No. Plaintiff - Appellant, 3:21-cv-03202-LB v. MEMORANDUM* PELOTON INTERACTIVE, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding
Argued and Submitted June 3, 2025 San Francisco, California
Before: CALLAHAN, BADE, and KOH, Circuit Judges.
Plaintiff-Appellant World Champ Tech, LLC (“WCT”) has a trademark
registration for “BIKE+” and has produced a mobile app called “Bike+” since
2014. In September 2020, Defendant-Appellee Peloton Interactive, Inc.
(“Peloton”) released a new version of its home exercise bike called the “Peloton
Bike+.” WCT sued for trademark infringement, claiming that Peloton’s use of the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. mark Peloton Bike+ is likely to cause confusion among consumers as to whether
Peloton produces or sponsors WCT’s Bike+ app. The district court granted
summary judgment to Peloton. WCT timely appealed, and we have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the district court’s order de novo and the
evidence in the light most favorable to WCT. See Ironhawk Techs., Inc. v.
Dropbox, Inc., 2 F.4th 1150, 1159 (9th Cir. 2021). We affirm.
“The test for likelihood of confusion is whether a ‘reasonably prudent
consumer’ in the marketplace is likely to be confused as to the origin of the good
or service bearing one of the marks.” Dreamwerks Prod. Grp., Inc. v. SKG Studio,
142 F.3d 1127, 1129 (9th Cir. 1998). In a reverse confusion case like this one,
“[t]he question . . . is whether consumers doing business with the senior user might
mistakenly believe that they are dealing with the junior user.” Id. at 1130. The
analysis is guided by eight factors:
(1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product lines.
Lodestar Anstalt v. Bacardi & Co., 31 F.4th 1228, 1252 (9th Cir. 2022) (quoting
Ironhawk Techs., 2 F.4th at 1160). “These factors are neither exhaustive nor
dispositive; it is the totality of facts in a given case that is dispositive.” Id. at 1252
(quoting Ironhawk Techs., 2 F.4th at 1160). Accordingly, even when certain
2 24-2266 factors weigh in the plaintiff’s favor, summary judgment is appropriate if those
factors are “overwhelmingly offset” by the remaining factors such that “no
reasonable trier of fact could find that confusion is probable.” Id. at 1261 (citation
modified).
That is the case here. The first two factors—mark strength and proximity of
goods—weigh in WCT’s favor. For the first factor, regardless of whether WCT’s
Bike+ mark is descriptive or suggestive, a jury could find that Peloton’s Peloton
Bike+ mark is so commercially strong that it could overtake WCT’s mark. See
Ironhawk Techs., 2 F.4th at 1162-63. For the second factor, a jury could find that
the parties’ products are intended for the “same class” of consumers—those who
bike as a form of exercise—and are “similar in use and function”—offering users
the ability to track metrics while biking. See id. at 1164.
But other factors overwhelmingly favor Peloton. Consider the third factor,
which turns on the similarity of the marks “as they are encountered in the
marketplace.” Lodestar, 31 F.4th at 1260 (citations omitted). Since WCT ceased
paid advertising in 2019, consumers who encounter WCT’s mark primarily do so
in the Apple App Store. There, Peloton’s app may appear alongside WCT’s app in
search results, but the two apps bear no similarity in appearance, especially
because the Peloton app does not use the term “Bike+.” Further, although the use
of house marks “can aggravate reverse confusion” in some cases, this is not one of
3 24-2266 them. Ironhawk Techs., 2 F.4th at 1165. The Apple App Store displays the app
producer’s name alongside the app name and icon, which reduces the potential for
any confusion as to who produces each app. See Cohn v. Petsmart, Inc., 281 F.3d
837, 842 (9th Cir. 2002); see also Lodestar, 31 F.4th at 1260. The mark similarity
factor therefore favors Peloton.
Next, consider the sixth factor, which asks “whether a ‘reasonably prudent
consumer’ would take the time to distinguish between the two product lines.”
Ironhawk Techs., 2 F.4th at 1167 (quoting Surfvivor Media, Inc. v. Survivor
Prods., 406 F.3d 625, 634 (9th Cir. 2005)). This factor similarly favors Peloton.
When WCT applied for its trademark registration, it represented to the United
States Patent and Trademark Office that its app “is not acquired through impulse or
‘rash’ action”; instead, consumers must complete the multi-step process of
searching the Apple App Store, selecting the app they are looking for among
competitor apps, and then entering a passcode or alternative method of
authentication to confirm that they intend to download the app. Again, during this
process, the Apple App Store displays “World Champ Tech” as the producer of the
Bike+ app. Accordingly, a reasonably prudent consumer would identify the Bike+
app as being produced by WCT, not Peloton. See Lerner & Rowe PC v. Brown
Engstrand & Shely LLC, 119 F.4th 711, 718 (9th Cir. 2024) (“[R]egular internet
users can readily distinguish domain names associated with the companies they are
4 24-2266 searching for from those they are not.” (citation omitted)).
Importantly, the fourth factor, actual confusion, also favors Peloton. While
WCT has offered an expert survey finding a net confusion rate of 12%, courts
generally treat rates below 10% as evidence “that confusion is not likely,” 5
McCarthy on Trademarks and Unfair Competition § 32:189 (5th ed. May 2025),
and rates “between 10% and 20%” as evidence that confusion is likely when “other
evidence is supportive,” id. § 32:188.1 Here, the other evidence points in the
opposite direction. The products have coexisted in the marketplace for years, and
hundreds of consumers have downloaded WCT’s Bike+ app during that time. Yet
WCT has no evidence that any of them has experienced any confusion. See Lerner
& Rowe, 119 F.4th at 720 (where 109,322 consumers saw the allegedly infringing
ads and 7,452 consumers clicked on them, but there were only 236 consumer calls
indicating confusion, “[t]he resulting 0.216% confusion rate [was] direct evidence
of the likelihood of confusion comparable to, but more complete than, survey
evidence”); Cohn, 281 F.3d at 842-43.
Collectively, these factors make it such that no reasonable trier of fact could
1 Cf. Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1038 (9th Cir. 2010) (triable issue over likelihood of confusion based on expert survey finding 11% net confusion rate and disputes of material fact with respect to each of the eight factors).
5 24-2266 find that confusion is probable, so WCT’s claims fail as a matter of law.2 See
Lodestar, 31 F.4th at 1261.
AFFIRMED.
2 The remaining factors do not add much to the picture. With respect to the fifth factor, marketing channels, to the extent WCT’s website or social media posts continue to generate views without paid promotion, the “shared use of a ubiquitous marketing channel” such as the internet “does not shed much light on the likelihood of consumer confusion.” Lerner & Rowe, 119 F.4th at 725 (citation omitted); see also M2 Software v. Madacy Ent., 421 F.3d 1073, 1083-84 (9th Cir. 2005). The seventh factor, intent, favors WCT because Peloton was aware of WCT’s registered mark, but WCT’s limited use of the mark is a “mitigating consideration.” Lodestar, 31 F.4th at 1260; see M2 Software, 421 F.3d at 1085. Finally, the eighth factor, expansion of product lines, is neutral at best for WCT. See M2 Software, 421 F.3d at 1085; Surfvivor Media, 406 F.3d at 634; Cohn, 281 F.3d at 843.
6 24-2266