Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vital Pharmaceuticals, Inc. v. Monster Energy Co.

United States District Court, S.D. Florida

October 16, 2019

VITAL PHARMACEUTICALS, INC., Plaintiff,
v.
MONSTER ENERGY COMPANY, et al., Defendants.

          ORDER

          ROY K. ALTMAN UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court upon the Plaintiff's Renewed Expedited Motion for Preliminary Injunction (the “Motion”) [ECF No. 43], the Defendants' Opposition to the Plaintiff's Motion for Preliminary Injunction (the “Opposition” or “Opp.”) [ECF No. 63], and the Plaintiff's Reply Memorandum in Support (the “Reply”) [ECF No. 79]. This Order resolves only the Motion and should not be taken as a judgment on the merits of VPX's claims. The Court has carefully reviewed the Motion, the parties' briefs, the record, and the applicable law. For the reasons that follow, the Motion is DENIED.

         THE HISTORY

         This case arises from a dispute between the Plaintiff, Vital Pharmaceuticals, Inc. (“VPX”), and the Defendants, Monster Energy Company and Reign Beverage Company, LLC (“Monster”), over Monster's alleged infringement of VPX's trade dress for its BANG product. VPX and Monster are competing manufacturers of energy drinks. See Complaint ¶ 13; Opp. at 3. In its Complaint for Damages and Injunctive Relief (the “Complaint”) [ECF No. 1], VPX brings claims against Monster for trade dress infringement under the Lanham Act, 15 U.S.C. § 1125(a) (Count I); trademark infringement under the Lanham Act, 15 U.S.C. § 1114 (Count II); unfair competition under the Lanham Act, 15 U.S.C. § 1125 (Count III); Florida common law trade dress infringement and unfair competition (Count IV); Florida common law trademark infringement (Count V); and a violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.204 (Count VI). Complaint at 26-32.

         VPX now seeks a preliminary injunction as to all but Count II.[1] See Motion at 6, 21. Specifically, VPX asks this Court to enjoin Monster from: 1) using VPX's BANG trade dress or “any trade dress that is confusingly similar to or a colorable imitation of” its BANG trade dress; 2) “doing any act or thing calculated or likely to cause confusion or mistake in the minds of the members of the public or prospective customers as to the source of the products offered or distributed by” Monster, “or likely to confuse members of the public or prospective customers into believing that there is some connection between” VPX and Monster; 3) “otherwise competing unfairly with [VPX] in any manner”; and 4) “assisting, aiding, or abetting any other person or business entity” from doing so. [ECF No. 43-9]. In addition to their briefs, the parties have submitted numerous exhibits and multiple declarations. The Court also held a hearing on July 25, 2019, at which the parties presented their oral arguments. [ECF No. 96].

         THE FACTS

         VPX launched its BANG energy drink in October 2012. Complaint ¶ 24. VPX avers that, “[u]nlike most energy drinks, BANG contains zero sugar, no calories, no carbohydrates, and no artificial colors.” Motion at 3. BANG-which contains certain “performance ingredients, ” such as branched chain amino acids (“BCAAs”) and CoQ10, id. at 3, 14-comes in over 20 flavors. Id. at 4. According to VPX, it has been continuously using its BANG trade dress since "as early as October 2015." Id. at 3. Importantly, VPX defines its BANG trade dress as containing the following "purely aesthetic, non-functional features" set against a 16-oz. black aluminum can:

(a) a contrasting, flavor-dependent, bold, brightly-colored design for the rest of the can on a black background; (b) a large, stylized "b" logo [] in the same bold, bright color(s) as the rest of the color(s) on the can, appearing horizontally, covering the top portion of the primary panel of the can; (c) the performance ingredients "BCAA AMINOS," "SUPER CREATINE®" and "ULTRA COQ10" in all upper case letters spanning the rim adjacent to the top of the can; (d) the product name "BANG" in a stylized font in the same bold, bright color(s) as the rest of the color(s) on the can, appearing horizontally, covering the bottom portion of the primary panel of the can; (e) the tagline, "POTENT BRAIN AND BODY FUEL," in contrasting white/silver immediately below the product name "BANG," appearing horizontally, covering the bottom portion of the can; (f) the inventive flavor designation in all capital letters in the same bold, bright color(s) as the rest of the color(s) on the can, appearing horizontally, below the tag line in the bottom portion of the can, and (g) the "0 CALORIES PER CAN" designation, outlined in a white box, on the bottom corner of the front of the can[.]

         Complaint ¶ 20; Motion at 3-4.

         Below is a demonstrative VPX submitted of its black-can BANG energy drinks:

         (Image Omitted)

         [ECF No. 43-2] at 4.

         Here is the full line of BANG energy drinks:

         (Image Omitted)

         [ECF No. 63-3] ¶ 41.

         Monster launched its MONSTER energy drink, sold in a black 16-oz. aluminum can, in 2002. Opp. at 3. In January of 2019, Monster announced a new line of energy drinks, REIGN, which launched nationwide in March of this year. Id. at 3-4. REIGN, like BANG, contains no sugar, no calories, no carbohydrates, and includes performance ingredients, such as BCAAs and CoQ10-though apparently in higher amounts. Motion at 14; [ECF No. 63-3] at 79.

         Below is a demonstrative of VPX's BANG alongside Monster's REIGN:

         (Image Omitted)

         [ECF No. 79] at 3.

         Monster's MONSTER alongside Monster's REIGN:

         (Image Omitted)

         [ECF No. 63-3] ¶ 19.

         Several other companies likewise sell their energy drinks in a black 16-oz. aluminum can. See [ECF No. 63-3] ¶ 43:

         (Image Omitted)

         In the Complaint, VPX alleges that JHO Intellectual Property Holdings, LLC, owns the REIGN trademark, and that the mark has been in continuous use since February 1, 2015. Complaint at ¶¶ 39, 41. Monster counters that VPX did not launch a product with the REIGN trademark until April of 2019-after Monster launched REIGN. See Opp. at 17 n.6; [ECF No. 63-5] ¶¶ 3-8, Exs. 1-6. VPX's REIGN is shown below:

         (Image Omitted)

         Complaint ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.