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Vital Pharmaceuticals Inc. V. Monster Energy

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Vital Pharmaceuticals Inc. V. Monster Energy Gordon Rees Scully Mansukhani, LLP 101 W Broadway, Suite 2000 San Diego, CA 92101 16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 9 8 7 6 5 4 3 2 1 Case 5:20-cv-01127Document1Filed06/01/20Pageof18ID#:1 Fax: (619) 696-7124 696-7124 (619) Fax: 230-7441 (619) Phone: 92101 CA SanDiego, Suite 2000 Broadway, 101W LLP MANSUKHANI, SCULLY REES GORDON [email protected] (SBN:307272) J.MULKERN PATRICK [email protected] (SBN:204931) MEYER B. SUSAN [email protected] (SBN SCULLY D. M. Delaware limited liability company, liability limited Delaware a LLC, COMPANY, BEVERAGE and REIGN corporation, Delaware a COMPANY, ENERGY MONSTER corporation, Sports, Florida a VPX INC.d/b/a PHARMACEUTICALS, VITAL PHARMACEUTICAL VITAL for Plaintiff Attorneys vs. vs. CENTRAL DISTRICT OF CALIFORNIA CALIFORNIA OF DISTRICT CENTRAL UNITED STATES DISTRICT COURT COURT DISTRICT STATES UNITED : 135853) Defendants. Defendants. Plaintiff, S, S, INC., COMPLAINT COMPLAINT d/b/a -1- VPX SPORTS VPX CASE NO. NO. CASE COMPLAINT FOR: FOR: COMPLAINT DEMAND FOR JURY TRIAL TRIAL FORJURY DEMAND (3) (2) (1) COMPETITION COMPETITION UNFAIR LAW COMMON CALIFORNIA AND COMPETITION; UNFAIR STATUTORY CALIFORNIA COMPETITION; UNFAIR AND INFRINGEMENT DRESS TRADE FEDERAL Gordon Rees Scully Mansukhani, LLP 101 W Broadway, Suite 2000 San Diego, CA 92101 16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 9 8 7 6 5 4 3 2 1 Case 5:20-cv-01127Document1Filed06/01/20Page2of18ID#:2 infringement infringement of VPX’s well-known BANG energy drinks by Monster’s nascent as follows: alleges and (“Reign Beverage”) LLC Company, Beverage action against Defendants Monster Energy Company (“Monster”) and Reign pursuant to 28 U.S.C. §§ 1331 (federal question), 1332(a) (diversity), and 1338(a) competition. Monster and Reign Beverage’s willful acts of trade dress infringement and unfair upon law—based California and Federal both relief—under injunctive and damages, Monster. Defendant of ownedsubsidiary California. limited liability company, with its principal place of business in Los Angeles, California. Corona, in of business place principal its with corporation, Florida. Weston, in business ( product’s flagship brand continues the Monster family tradition of shamelessly copying VPX and its is apparent from the following comparisons, Monster’s REIGN INFERNO sub- line to include a thermogenic-focused sub-brand, called “REIGN INFERNO.” As REIGN line of products—with Monster having now expanded its rip-off product Plaintiff Plaintiff Vital Pharmaceuticals, Inc. d/b/a VPX Sports (“VPX”) brings this 7. 6. 5. 4. 3. 2. 1. This Court has original subject matter jurisdiction over this dispute This is an action for actual damages, disgorgement of profits, punitive Upon information and belief, Defendant Reign Beverage is a wholly Delaware a is Beverage Reign Defendant belief, and information Upon Upon information and belief, Defendant Monster is a Delaware Plaintiff VPX is a Florida corporation, with its principal place of This action follows on the heels of Monster’s intentional trade dress i.e. BANG’s) trade dress. tradedress. BANG’s) JURISDICTION AND VENUE AND JURISDICTION INTRODUCTION INTRODUCTION THE PARTIES COMPLAINT COMPLAINT -2- Gordon Rees Scully Mansukhani, LLP 101 W Broadway, Suite 2000 San Diego, CA 92101 16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 9 8 7 6 5 4 3 2 1 Case 5:20-cv-01127Document1Filed06/01/20Page3of18ID#:3 because, because, on information and belief, each has its principal place of business within facts. ofnucleus operative common a from and derive controversy claims are so related to the federal law law state the claims because 1367(a) and 1338(b) that §§ U.S.C. 28 to they pursuant dispute this over form the same case or (trademarks andunfair Courtcompetition). hasThis jurisdiction also supplemental without the need to add or otherwise join or to JHO add otherwise withouta need as the party. the BANG Trade Dress asserted herein, including the right to sue third parties for infringement products. VPX is the exclusive licensee of all the BANG-related intellectual property, including intellectual property rights associated with VPX’s various product lines—including its BANG 1 chained amino acids, and Coenzyme Q10. BANG energy drinks are sold in 16- energy drinks that contain, among other ingredients, Super Creatine, line.product BANG branched- industry. thein products nutrition sports product lines. VPX’s products are now among the best-selling energy drinks and effort, and financial resources promoting, marketing, and advertising its various supplements. drinks andnutritional focusedenergy and has since become a leading manufacturer, distributor, and seller of fitness- A. TradeDress BANG Its and Plaintiff JudicialDistrict. this in occurred complaint this to rise giving events the of part substantial a (ii) and District, Judicial U.S.C. § 1391(b)—at least because (i) Monster and Reign Beverage reside in this JudicialDistrict. this Non-party JHO Intellectual Property Holdings, LLC (“JHO”) owns various trademarks and other other and trademarks various owns (“JHO”) LLC Holdings, Property Intellectual JHO Non-party 12. 11. 10. 9. 8. For example, in approximately September 2008, VPX launched its Since its inception, VPX has invested a significant amount of time, Plaintiff VPX was founded in 1993, later incorporated in May 1996, Venue is proper in the Central District of California—pursuant to 28 Beverage Reign Monster and over jurisdiction personal has Court This 1 BANG energy drinks are sugar-free, zero-calorie, carbonated carbonated zero-calorie, aresugar-free, drinks energy BANG FACTUAL BACKGROUND FACTUAL COMPLAINT COMPLAINT -3- Gordon Rees Scully Mansukhani, LLP 101 W Broadway, Suite 2000 San Diego, CA 92101 16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 9 8 7 6 5 4 3 2 1 Case 5:20-cv-01127Document1Filed06/01/20Page4of18ID#:4 interested in pre-workout-specific energy. energy. pre-workout-specific in interested for and targeted to healthy, adult consumers—including fitness-focused consumers colors. artificial or carbohydrates no have also and above) noted (as calories no and sugar no contain they that in market the on drinks energy most from differ but cans, aluminum ounce the can. can.the covering the top portion of the can in the same bold ( can appearing along the bottom portion of the can; and (v) a solid-colored banner ( bold same the in CAPS ALL in designation flavor color as the rest of the can covering the middle/bottom portion of ( bold the same the in can; name product (iv) the (iii) a can; the of portion middle/top the ( bold same the in logo large a (ii) can; background with contrasting, bold ( the following non-functional features on a consists of the 16-oz overall look-and-feel resulting aluminum from the distinctive combination can: of (i) a and black beverages on the shelves of retailers. drinks Specifically, energy other all the from distinctive and BANG appealing visually is Trade VPX—that of dress Dress have also enjoyed a unique appearance—recognizable as the style, work, and trade 15. 14. 13. A visual example of the BANG Trade Dress is depicted below: below: depicted is Trade Dress BANG the of visual example A Since at least as early as October 2015, VPX’s BANG energy drinks designed beverages great-tasting high-quality, are drinks energy BANG COMPLAINT COMPLAINT i.e. i.e. brightly-colored) design for the rest of the -4- bright) color as the rest of the can covering covering can the of rest the as color bright) i.e. i.e. bright) color as the rest of the the of rest the as color bright) bright) color as the rest of i.e. bright) bright) Gordon Rees Scully Mansukhani, LLP 101 W Broadway, Suite 2000 San Diego, CA 92101 16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 9 8 7 6 5 4 3 2 1 Case 5:20-cv-01127Document1Filed06/01/20Page5of18ID#:5 neon-green. neon-green. is scarlet-red/neon-green, Purple Guava Pear is yellow/purple, and Sour Heads is however, Mango, Peach light-pink; is example, for above, shown Candy Cotton The different—but internally consistent—bold ( shown below. below. shown “swag,” as well on a fleet of specially-designed ( energy drinks, including featuring the BANG Trade Dress, on apparel and other (@BANGenergy). Facebook and social media platforms like Instagram (@bangenergy), Twitter (@BANGenergy), including on its website ( drinks, including featuring the BANG Trade Dress, extensively on the internet— Trade Dress. BANG the drinks, includingfeaturing energy has spent millions of dollars marketing, advertising, and VPX Indeed, Dress. Trade BANG the featuring drinks,including energy BANG its promoting its BANG 16. 21. 20. 19. 18. 17. BANG BANG energy drinks are sold in over 20 different flavors, each with a Additionally, Additionally, VPX also markets, advertises, and promotes its BANG energy BANG its promotes and advertises, markets, VPX example, For promoting energy/effort and time of amounts significant spent has VPX non-functional. Tradeis Dress TheBANG distinctive. inherently Tradeis Dress TheBANG www.bang-energy.com COMPLAINT COMPLAINT -5- i.e. bright) contrasting color scheme. i.e. ), its retailers’ websites, and on custom) vehicles like the one Gordon Rees Scully Mansukhani, LLP 101 W Broadway, Suite 2000 San Diego, CA 92101 16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 9 8 7 6 5 4 3 2 1 Case 5:20-cv-01127Document1Filed06/01/20Page6of18ID#:6 people. As a result, third-party followers (and others, including celebrities ambassadors, VPX’s and social media presence is estimated to reach over 235 million (including Instagram, Twitter, and Facebook).
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