Muscle Milk Lawsuit
June 10, 2009
The newest Muscle Milk lawsuit revolves around a little problem they have with The National Advertising Division (NAD) of the Council of Better Business Bureau! This governing body has referred advertising claims made by CytoSport Beverage Company for its Muscle Milk product to the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) for further review. This happened after CytoSport decided to not back down to an NAD challenge on their product Muscle Milk.
Meet The Challenger
The NAD requested that CytoSport provide substantiation for certain advertising claims, following a challenge by Nestle USA. Hmmm, the post gets suddenly more interesting now doesn’t it? Especially when you consider that back in 1985, Nestle acquired Carnation (makers of Carnation’s Instant Breakfast - pictured on left). Maybe Nestle saw the new Muscle Milk RTDs (which are being distributed by Pepsi) as a threat to their Instant Breakfast RTD business!?
The Claim
Nestle held that Muscle Milk, marketed as a “High Protein Chocolate Milk Shake” is a dietary supplement that is sold in grocery and convenience stores alongside milk and other consumer beverages. Nestle maintained that the claim “Muscle Milk” is false and misleading because it claims that the product contains actual milk when it does not and that consumers are likely to be misled into thinking that they’re buying a flavored or supplemented milk product, when in fact, the product is a water-based dietary supplement.
Cytosport Stance
Cytosport maintained that the claims for its product are truthful and non-misleading and that Muscle Milk, is a non-deceptive registered trademark. It advised NAD that because it believed NAD review was not appropriate or necessary, it would decline to participate in the NAD self-regulatory forum. As a result, NAD has referred the matter to the FTC and FDA.
SOURCE: National Advertising Division
VPX Appeals Court Decision Over Cytosport Lawsuit
May 10, 2009
If you’ve been following
the trademark lawsuit between Cytosport and VPX over the Muscle Milk trademark, you’ll find this post entertaining. We reported the ruling last week (click HERE if you missed it) where Cytosport was granted an injunction against VPX from marketing their “Muscle Power” RTD as Cytosport felt it was too similar to their “Muscle MIlk” RTD. Well the case has gotten interesting now because VPX has filed for an appeal to the court decision! Jack Owoc, CEO, Chief Scientific Officer, dude in the many of the VPX ads, and of course also the 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.”
So what do you think? Do you think it’s too similar or do you think VPX has a solid argument? Post your comment below.
SOURCE: Getbig.com
CytoSport Wins Injunction Against VPX For Trademark Infringement
May 7, 2009
A Federal Court issued an order requiring Vital Pharmaceuticals, Inc. (VPX) to immediately remove Muscle Power from the marketplace after concluding that the product infringes on CytoSport’s trademark rights of Muscle Milk®. This preliminary injunction was prompted after CytoSport filed a lawsuit against VPX, stating that Muscle Power’s packaging, or “trade dress,” was deceptively similar to Muscle Milk®’s packaging. In its decision, the court stated that “VPX has chosen an identical font, in an identical color, on an identically shaped package, and placed the mark on the package in an identical location.” The court also stated that “when the marks are viewed as a whole with each product’s respective trade dress, the court has no difficulty concluding that the two marks are overwhelmingly similar.” Upon concluding that VPX has violated CytoSport’s trademark rights, the court also stated that “VPX could have easily used a trade dress more consistent with its other RTD products, e.g. Redline, Black Pearl and Pump 7.” Given that the injunction is preliminary in nature, the lawsuit will continue while the injunction is in place. “We are gratified by the court’s ruling and will continue to vigorously enforce our rights to protect our brand, our marketing partners, and our consumers against confusion in the marketplace,” says Greg Pickett, Co-Founder /CEO of CytoSport.
SOURCE: Hardbody.com