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Author Topic: VPX loses in court - must remove all Muscle Power from shelves  (Read 3637 times)
TK
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« on: May 06, 2009, 09:09:51 PM »

Plaintiff CytoSport, Inc. (“plaintiff” or “CS”) brings this action against Vital Pharmaceuticals, Inc. (“defendant” or “VPX”) for trademark and trade dress infringement, unfair competition and false advertising under federal and state law. (Second Am. Compl., filed Mar. 19, 2009.) This matter is before the court on plaintiff’s motion for preliminary injunction, enjoining VPX from marketing, selling, advertising or promoting a liquid proteinbased nutritional supplement using the name MUSCLE POWER® or any other trademark confusingly similar to plaintiff’s MUSCLE MILK® trademark. Plaintiff also seeks to enjoin VPX, in conjunction with these activities, from using a trade dress that is confusingly similar to the trade dress associated with MUSCLE MILK. VPX opposes the motion, arguing its registered MUSCLE POWER® trademark does not infringe plaintiff’s MUSCLE MILK® trademark, which is a weak, descriptive mark, and VPX’s MUSCLE POWER trade dress does not infringe plaintiff’s MUSCLE MILK trade dress since the two trade dresses have numerous, specific differences in both color and layout, and VPX has been using its dress trade consistently across all its product lines for almost ten years.

The court heard oral argument on the motion on May 1, 2009. By this order, it now renders its decision on the motion. For the reasons set forth below, plaintiff’s motion for preliminary injunction is GRANTED. Plaintiff has demonstrated a reasonable likelihood of success in demonstrating that defendant’s use of its MUSCLE POWER® trademark and trade dress infringes plaintiff’s MUSCLE MILK® trademark and trade dress, that plaintiff is likely to sustain irreparable harm to its reputation and customer goodwill absent preliminary relief, the balance of equities tips in plaintiff’s favor in light of its longstanding reputation in the community and use of the MUSCLE MILK® trademark, and the public is served by issuance of the requested injunction which seeks to avoid customer confusion in the marketplace and permits plaintiff to control its products’ reputation.

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elite_lifter
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« Reply #1 on: May 06, 2009, 09:11:46 PM »

Jack Owec is a douche.
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« Reply #2 on: May 06, 2009, 09:31:12 PM »

Jack Owec is a douche.
X 19  .... I guess CytoSprout invented cows Roll Eyes
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Ron
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« Reply #3 on: May 06, 2009, 10:32:09 PM »

This only applies to VPX's Muscle Power RTD's (Ready to Drink), and not to Red Line, Power Pump, or any other product they carry or sell.


More here...

http://www.hardbody.com/news/2009/05/06/muscle-milk-prevails-court-orders-vpxs-muscle-power-be-removed-from-marketplace-immediately/

Conslusion...

Based upon these findings of the court, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and good cause appearing, IT IS HEREBY ORDERED as follows:

1. That VPX and its officers, agents, servants, employees and attorneys, and anyone acting in concert or
participation with them, are PRELIMINARILY ENJOINED from marketing, selling, advertising, or promoting a
liquid protein-based nutritional supplement using the name MUSCLE POWER.

2. That VPX and its officers, agents, servants, employees and attorneys, and anyone acting in concert or
participation with them, are PRELIMINARILY ENJOINED from marketing, selling, advertising, or promoting a
liquid protein-based nutritional supplement using any trademark confusingly similar to the MUSCLE MILK®
trademark in connection with any of the following features:

a. An octagonal-shaped Tetra Pak package wherein:

I. The package front is visually divided into three sections, top, middle, and bottom.

ii. On the middle portion of the package, the word MUSCLE is prominently displayed above the word POWER in all capital letters in a bold, block-letter, white-colored font on a dark background.

iii. On the lower portion of the package a depiction of a swirled colored liquid appears reflecting the color of the product in the package, i.e., brown for chocolate, red for strawberries and cream, etc.

iv. On the top portion of the package, an identification of the flavor in words and a picture.

v. On the side of the package, the words MUSCLE POWER printed in bold, block-letter font and oriented so the consumer can read the words from the bottom to the top of the package.

3. That VPX and its officers, agents, servants, employees and attorneys, and anyone acting in concert or
participation with them, are PRELIMINARILY ENJOINED from marketing, selling, advertising, or promoting a
liquid protein-based nutritional supplement using any name or mark other than MUSCLE POWER that is
confusingly similar to the name MUSCLE MILK.

4. That VPX and its officers, agents, servants, employees and attorneys, and anyone acting in concert or
participation with them, are PRELIMINARILY ENJOINED from marketing, selling, advertising, or promoting a
liquid protein-based nutritional supplement using trade dress that is confusingly similar to the trade dress
associated with MUSCLE MILK.

a. The MUSCLE MILK trade dress includes an octagonal Tetra Pak package with the following features:

I. The package front is visually divided into three sections, top, middle, and bottom.

ii. On the middle portion of the package, the word MUSCLE is prominently displayed above
the word MILK in all capital letters in a bold, block-letter, white-colored font on a dark background.

iii. On the lower portion of the package a depiction of a swirled colored liquid appears reflecting the color of the product in the package, i.e., brown for chocolate, red for strawberries and cream, etc.

iv. On the top portion of the package, the flavor of the product is identified.

v. On the side of the package, the words MUSCLE MILK® are printed in bold, block-letter font and oriented so the consumer can read the words from the bottom to the top of the package.

5. Plaintiff shall post a corporate bond in the amount of $500,000.00 within 5 business days of the date of this order.

IT IS SO ORDERED. DATED: May 6, 2009

FRANK C. DAMRELL, JR.
UNITED STATES DISTRICT JUDGE



For those of you who want to read on the entire case, here is the pdf where you can look at it

http://www.cytosport.com/wp-content/uploads/2009/05/court-order.pdf


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« Reply #4 on: May 07, 2009, 01:04:19 AM »

This is fucking retarded. Reminds me of when the World Wildlife Fund sued World Wrestling Federation over the rights to the "WWF" initials and trademarks. As if anyone other than Matt T. could confuse the two.  Roll Eyes
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HAHA, RON.....
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« Reply #5 on: May 07, 2009, 01:11:42 AM »

Yeah very retarded.  Muscle Milk is shit anyways.  What's the other brand with the world milk in it? 
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LatsMcGee
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« Reply #6 on: May 07, 2009, 03:12:35 AM »

This isn't a bad thing for VPX,  those Muscle Power RTDs tasted like fucking shit.  I tried all the flavors at the Arnold and they all sucked.  Back to the drawing board.
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« Reply #7 on: May 07, 2009, 03:27:16 AM »

This only applies to VPX's Muscle Power RTD's (Ready to Drink), and not to Red Line, Power Pump, or any other product they carry or sell.


More here...

http://www.hardbody.com/news/2009/05/06/muscle-milk-prevails-court-orders-vpxs-muscle-power-be-removed-from-marketplace-immediately/

Conslusion...

Based upon these findings of the court, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and good cause appearing, IT IS HEREBY ORDERED as follows:

1. That VPX and its officers, agents, servants, employees and attorneys, and anyone acting in concert or
participation with them, are PRELIMINARILY ENJOINED from marketing, selling, advertising, or promoting a
liquid protein-based nutritional supplement using the name MUSCLE POWER.

2. That VPX and its officers, agents, servants, employees and attorneys, and anyone acting in concert or
participation with them, are PRELIMINARILY ENJOINED from marketing, selling, advertising, or promoting a
liquid protein-based nutritional supplement using any trademark confusingly similar to the MUSCLE MILK®
trademark in connection with any of the following features:

a. An octagonal-shaped Tetra Pak package wherein:

I. The package front is visually divided into three sections, top, middle, and bottom.

ii. On the middle portion of the package, the word MUSCLE is prominently displayed above the word POWER in all capital letters in a bold, block-letter, white-colored font on a dark background.

iii. On the lower portion of the package a depiction of a swirled colored liquid appears reflecting the color of the product in the package, i.e., brown for chocolate, red for strawberries and cream, etc.

iv. On the top portion of the package, an identification of the flavor in words and a picture.

v. On the side of the package, the words MUSCLE POWER printed in bold, block-letter font and oriented so the consumer can read the words from the bottom to the top of the package.

3. That VPX and its officers, agents, servants, employees and attorneys, and anyone acting in concert or
participation with them, are PRELIMINARILY ENJOINED from marketing, selling, advertising, or promoting a
liquid protein-based nutritional supplement using any name or mark other than MUSCLE POWER that is
confusingly similar to the name MUSCLE MILK.

4. That VPX and its officers, agents, servants, employees and attorneys, and anyone acting in concert or
participation with them, are PRELIMINARILY ENJOINED from marketing, selling, advertising, or promoting a
liquid protein-based nutritional supplement using trade dress that is confusingly similar to the trade dress
associated with MUSCLE MILK.

a. The MUSCLE MILK trade dress includes an octagonal Tetra Pak package with the following features:

I. The package front is visually divided into three sections, top, middle, and bottom.

ii. On the middle portion of the package, the word MUSCLE is prominently displayed above
the word MILK in all capital letters in a bold, block-letter, white-colored font on a dark background.

iii. On the lower portion of the package a depiction of a swirled colored liquid appears reflecting the color of the product in the package, i.e., brown for chocolate, red for strawberries and cream, etc.

iv. On the top portion of the package, the flavor of the product is identified.

v. On the side of the package, the words MUSCLE MILK® are printed in bold, block-letter font and oriented so the consumer can read the words from the bottom to the top of the package.

5. Plaintiff shall post a corporate bond in the amount of $500,000.00 within 5 business days of the date of this order.

IT IS SO ORDERED. DATED: May 6, 2009

FRANK C. DAMRELL, JR.
UNITED STATES DISTRICT JUDGE



For those of you who want to read on the entire case, here is the pdf where you can look at it

http://www.cytosport.com/wp-content/uploads/2009/05/court-order.pdf



Roll Eyes I cant imagine this holding up in court !
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« Reply #8 on: May 08, 2009, 11:36:59 PM »


Friday, May 8th, 2009

VPX filed an appeal Friday of the injunction against its Muscle Power protein drink given to them this week by a federal judge.

The judge ruled that Muscle Power’s name and packaging was too similar to that of Cytosport’s Muscle Milk, the current leader of the fast-growing protein drink market.

VPX CEO Jack Owoc said he was disappointed by the judge’s ruling, which will require the company to remove all Muscle Power product from shelves and dispose of it.

Statement from VPX:

VPX filed an appeal of the injunction issued by a district court in California precluding VPX from using its registered trademark "Muscle Power" and the trade dress on its packaging. Jack Owoc, CEO and founder of VPX, explained that VPX was highly disappointed by the ruling:

"We are very disconcerted by the court''s ruling and think that it was misled in regard to Cytosport''s rights and the nature of the competition in our industry. The only similarities in our trademarks are the use of the word ''Muscle,'' but there are more than 60 registered trademarks at the Patent and Trademark Office in class 5 alone containing the word ''Muscle.'' ''Muscle'' is commonly used in product and company names in our industry, in part because our products help build muscle. Cytosport never objected to the registration of our trademark, despite having an opportunity to do so, and the Patent and Trademark Office found no conflict between "Muscle Power®" and "Muscle Milk®."

We have never intended to confuse customers into thinking our product was Muscle Milk® -we want them to know it's different and better! We point out in our advertising why Muscle Power® is a better product -- Muscle Milk® contains 600% more sugar and a 183% more fat than Muscle Power®. Muscle Power contains 200% more fiber and 89% less carbohydrates.

We prominently put our VPX logo on the top center panel and, the background, like most VPX products, is the specific 293 Pantone Blue color that consumers have identified as our brand for many years. VPX apologizes to its customers for any disruption this may cause, and we are committed to making our popular Muscle Power® drink available again to our customers and the public as soon as possible."

http://www.bevnet.com/news/2009/5-8-2009-vpx_appeals_injunction
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