United States District Court, S.D. Florida
ALTMAN UNITED STATES DISTRICT JUDGE.
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.
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.
seeks a preliminary injunction as to all but Count
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].
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[.]
¶ 20; Motion at 3-4.
is a demonstrative VPX submitted of its black-can BANG energy
No. 43-2] at 4.
the full line of BANG energy drinks:
No. 63-3] ¶ 41.
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.
is a demonstrative of VPX's BANG alongside Monster's
No. 79] at 3.
MONSTER alongside Monster's REIGN:
No. 63-3] ¶ 19.
other companies likewise sell their energy drinks in a black
16-oz. aluminum can. See [ECF No. 63-3] ¶ 43:
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: