ESTTA986068 07/08/2019 in the UNITED STATES PATENT and TRADEMARK OFFICE BEFORE the TRADEMARK TRIAL and APPEAL BOARD Proceeding 9

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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA986068 Filing date: 07/08/2019

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 92070514 Party Defendant JHO Intellectual Property Holdings, LLC Correspondence MARC J KESTEN Address 1600 NORTH PARK DRIVE WESTON, FL 33326 UNITED STATES [email protected], [email protected], [email protected] 954-641-0570 EXT 293

Submission Motion to Dismiss - Rule 12(b) Filer's Name Erica W. Stump Filer's email [email protected], [email protected], [email protected] Signature /ews/ Date 07/08/2019 Attachments JHO Motion to Dismiss SUPER CREATINE 7-8-19.pdf(3116559 bytes )

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

MONSTER ENERGY COMPANY,

Petitioner, Cancellation No.: 92070514 v. Registration No.: 5,252,855

JHO INTELLECTUAL PROPERTY HOLDINGS, LLC., Trademark: SUPER CREATINE

Registrant.

Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451

REGISTRANT’S CORRECTED MOTION TO DISMISS UNDER RULE 12(b)(1) and 12(b)(6) AND MEMORANDUM IN SUPPORT THEREOF

Registrant, JHO INTELLECTUAL PROPERTY HOLDINGS, LLC (“Registrant” or

“JHO”), moves the Trademark Trial and Appeal Board (the “Board” or “TTAB”) for an order dismissing the Petition for Cancellation (“Petition”) filed by Monster Energy Company

(“Monster”) pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the following grounds: (1) Monster lacks standing to make this Petition and (2) all claims against

Registrant fail to plausibly allege a cause of action upon which relief may be granted. In support of its motion, Registrant submits the following:

BACKGROUND

On February 5, 2019, Monster filed a Petition for Cancellation against Registrant JHO seeking to cancel JHO’s U.S. trademark registration for the mark, SUPER CREATINE, U.S. Reg.

No. 5,252,855 for “Dietary and nutritional supplements containing creatine; Dietary supplements

containing creatine; Nutritional supplements containing creatine; Nutritional drinks containing creatine” (hereinafter “Subject Registration”). As grounds for cancellation, Monster alleges that:

(1) the Subject Registration is generic; (2) JHO and its affiliates knowingly used the federal registration symbol before the mark was registered; (3) JHO and its affiliate’s use of the mark in the BANG products is deceptive; (4) JHO did not have sufficient legal and exclusive use of the mark at the time it filed its application; and (5) JHO and its affiliates knowingly made fraudulent representations to the USPTO to obtain the Subject Registration. While denying the material allegations made by Monster as being baseless, without any merit, and most of all, fabricated and misleading, JHO hereby moves to dismiss the Petition on the grounds that Monster has no standing to bring this cancellation proceeding1.

LEGAL STANDARD FOR MOTION TO DISMISS

A motion to dismiss under Rule 12(b)(6) is a test of the sufficiency of the complaint.

Advanced Cardiovascular Systems Inc. v. SciMed Life Systems Inc., 988 F.2d 1157, 26 USPQ2d

1038, 1041 (Fed. Cir. 1993); Covidien LP v. Masimo Corp., 109 USPQ2d 1696, 1697 (TTAB

2014). For purposes of determining a motion to dismiss, all of the plaintiff’s well-pleaded allegations must be accepted as true, and the complaint must be construed in the light most favorable to the plaintiff. See Advanced Cardiovascular Systems Inc., 26 USPQ2d at 1041;

Petroleos Mexicanos v. Intermix SA, 97 USPQ2d 1403, 1405 (TTAB 2010). Furthermore, “[u]nder the simplified notice pleading of the Federal Rules of Civil Procedure, the allegations of a complaint should be construed liberally so as to do substantial justice.” Fair Indigo LLC v. Style

Conscience, 85 USPQ2d 1536, 1538 (TTAB 2007).

1 This is not Monster’s first trademark action before the Board. The Board’s website lists well over 200 actions in which Monster is involved – all since 2018.

To survive a motion to dismiss, a plaintiff need only allege sufficient factual content that, if proved, would allow the Board to conclude, or to draw a reasonable inference, that (1) the plaintiff has standing to maintain the proceeding, and (2) a valid ground exists for denying the registration sought or for cancelling the involved registration. See Doyle v. Al Johnson’s Swedish

Restaurant & Butik Inc., 101 USPQ2d 1780, 1782 (TTAB 2012) (citing Young v. AGB Corp., 152

F.3d 1377, 47 USPQ2d 1752, 1754 (Fed. Cir. 1998)); see also Lipton Indus., Inc. v. Ralston Purina

Co., 670 F.2d 1024, 213 USPQ 185, 187 (CCPA 1982).

Further, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In particular, the plaintiff must allege well-pleaded factual matter and more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” to state a claim plausible on its face. Id. (citing

Twombly, 550 U.S. at 555). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See Twombly, 550 U.S. at 556-57. However, the plausibility standard does not require that a plaintiff set forth detailed factual allegations. Id. Rather, a plaintiff need only allege “enough factual matter … to suggest that [a claim is plausible]” and “raise a right to relief above the speculative level.” Totes-Isotoner Corp. v. U.S., 594 F.3d 1346, 1354 (Fed. Cir. 2010).

MONSTER LACKS STANDING

Standing is a threshold issue that must be proved in every inter partes case. Lipton, 213

USPQ at 189. In order to meet the standing requirement, a plaintiff need only show that it has a real interest; i.e., a personal stake, in the outcome of the proceeding. See Ritchie v. Simpson, 170

F.3d 1092, 50 USPQ2d 1023, 1026 (Fed. Cir. 1999); and Jewelers Vigilance Committee, Inc. v.

Ullenberg Corp., 823 F.2d 490, 2 USPQ2d 2012, 2023-24 (Fed. Cir. 1987).

The purpose of the standing requirement, which is directed solely to the interest of the plaintiff, is to prevent litigation when there is no real controversy between the parties. In the case of a cancellation proceeding, the standing requirement has its basis in Section 14 of the Trademark

Act, which provides, in relevant part, that “[a]ny person who believes that he is or will be damaged

… by the registration of a mark upon the principal register” may file upon payment of the

prescribed fee, a petition to cancel stating the grounds therefor. 15 U.S.C. § 1064. The U.S. Court

of Appeals for the Federal Circuit, has enunciated a liberal threshold for determining standing,

namely that a plaintiff must demonstrate that he possesses a “real interest” in a proceeding beyond

that of a mere intermeddler, and “a reasonable basis for his belief of damage.” See Ritchie v.

Simpson, 50 USPQ2d at 1025-26. A “real interest” is a “direct and personal stake” in the outcome

of the proceeding. Id. at 1026. “The facts regarding standing … are part of a petitioner’s case and must be affirmatively proved. Accordingly, [petitioner] is not entitled to standing solely because of the allegations in its petition.” Lipton, 213 USPQ at 189. See also Ritchie, 50 USPQ2d at 1027.

In its Petition, the extent of Monster’s damages allegations is

“Petitioner Monster Energy (“Monster”) is being damaged and will continued to be damaged by the continued registration in the United States Patent and Trademark Office (“USPTO”) of the mark “SUPER CREATINE” . . .”

(See the first paragraph of the first page of the Petition) and

“For the reasons expressed herein, Monster is being damaged, and will continue to be damaged, by the Subject Registration.”

(See ¶ 12 of the Petition).

However, the Petition does not contain any other allegations pertaining to whether

Monster has a personal stake in the outcome or how it will be damaged by the continued

registration of the Subject Registration2. For example, the Petition fails to allege that Monster has a pending U.S. trademark application that is being refused registration under Section 2(d) as a result of the Subject Registration. Tri-Star Marketing, LLC v. Nino Franco, Spumanti S.R.L.,

84 USPQ2d 1912, 1914 (TTAB 2007).

The Petition also fails to allege whether Monster is using or intends to SUPER CREATINE

(Creatyl-L-Leucine) or any other creatine ingredient in its energy drink products. The are no such allegations because Monster has never used, nor does it intend to use any form of creatine in any of its so-called “energy drink” products. See Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90

USPQ2d 1112, 1118 (TTAB 2009). Moreover, Monster does not allege in its Petition any interest in the mark SUPER CREATINE, now or in the future. In fact, the chemical composition of

SUPER CREATINE is presently covered by U.S. Patent No. 8,445,466. Thus, even if Monster wanted to use SUPER CREATINE, it couldn’t as it would violate U.S. Patent NO. 8,445,466 and

JHO has no intention of licensing its U.S. patent covering SUPER CREATINE or its registered trademark to Monster.

Further, Monster fails to allege in the Petition that it owns common law rights in the mark

SUPER CREATINE. Benjamin J. Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1022

(TTAB 2009).

Monster merely alleges that VPX’s use of the “SUPER CREATINE” mark with the federal registration symbol has “directly damaged, and will continue to damage Monster,” without any factual basis. In addition to this allegation being utterly preposterous (and false), Monster’s pleadings

2 Monster’s Petition is simply an all-out assault by Monster to disparage JHO, Vital Pharmaceuticals, and their common owner, John H. Owoc, cluttered with irrelevant allegations of third parties that have purported used the term “super creatine” at some time or another and bogus scientific claims regarding why SUPER CREATINE is not creatine, despite the label on the BANG can reading “SUPER CREATINE® (Creatyl-L-Leucine [Creatine bonded to L-Leucine]).”

do not state a legally sufficient basis for standing. Monster’s drinks do not contain any form of

creatine. Thus, despite that “[p]roof of standing in a Board proceeding is a low threshold.” Syngenta,

90 USPQ2d at 1118, Petitioner has not and could not assert its need to use the term “SUPER

CREATINE.” At best, Petitioner is asserting that JHO should not have a U.S. trademark registration for SUPER CREATINE. This assertion, however, fails to meet the Board’s threshold of proving that it has standing in this cancellation proceeding because Petitioner has failed to establish a “real interest” and “reasonable belief in damage.” Because Monster has not set forth sufficient allegations for standing, Monster’s pleaded claims fail, and its Petition should be dismissed.

MONSTER’S PETITION IS AN IMPROPER CLAIM FOR UNFAIR COMPETITION AND FALSE ADVERTISING AND A DUPLICATION OF ITS CLAIMS PENDING IN FEDERAL COURT

Allegations that the registered mark has been misused as an instrument of unfair

competition or false advertising are not regarded as sufficient grounds to cancel. 3 McCarthy on

Trademarks and Unfair Competition § 20:54 (5th ed.) (citing others). The Trademark Board does

not have jurisdiction over unfair competition issues in an opposition or cancellation proceeding.

Id. (citing others). Monster’s Petition alleges that SUPER CREATINE is not creatine and further, that Creatyl-L-leucine may not be a bioavailable form of creatine. Petition, at ¶ 17. Whether

SUPER CREATINE is or is not creatine and whether Creatyl-L-Leucine is biolavailable are not

issues that the Board has jurisdiction over in a cancellation proceeding. As such, these claims

should be dismissed and/or stricken.

The Court in Dream Team Collectibles, Inc. v. NBA Properties, Inc., 958 F.Supp. 1401,

1421 (E.D. Mo. 1997) dismissed a claim for cancellation of the DREAM TEAM mark where the

arguments were essentially that the Court should cancel the DREAM TEAM registration based

upon activities of copying and counterfeiting that essentially constituted copyright infringement,

unfair competition and false advertising. As in the Dream Team case, the allegations in the Petition are basically those of unfair competition and false advertising. To that end, Monster filed an action that is currently pending in the Central District of California for, inter alia, false advertising and unfair competition under the Lanham Act against VPX for VPX’s use of SUPER CREATINE on its BANG energy drink. Monster Energy Company v. Vital Pharmaceuticals, Inc., Case No. 5:18- cv-1882 (“California Action”). A copy of the First Amended Complaint is attached as Exhibit

“1.” On or about April 10, 2019, Monster moved for a preliminary injunction to enjoin, inter alia,

VPX from using the term SUPER CREATINE to refer to its patented Creatyl-L-Leucine ingredient in BANG. The Court heard oral argument on June 3, 2019 and denied Monster’s preliminary injunction. A copy of the Order is attached as Exhibit “2.” Monster seeks to improperly obtain the same relief that is already before the District Court in the California Action. Accordingly,

Monster’s Petition should be dismissed.

DISMISSAL OF COUNT I – SUBJECT MARK IS NOT GENERIC

Monster has not sufficiently pled that the SUPER CREATINE mark is generic.

A generic term “is the common descriptive name of a class of goods or services.”.

Because generic terms “are by definition incapable of indicating a particular source of the goods or

services,” they cannot be registered as trademarks. In re Dial–A–Mattress Operating Corp., 240

F.3d 1341, 1344. “The critical issue in genericness cases is whether members of the relevant public

primarily use or understand the term sought to be protected to refer to the genus of goods or services

in question.” Marvin Ginn, 782 F.2d at 989–90. In Marvin Ginn, the Federal Circuit held that

Determining whether a mark is generic [and thus not capable of distinguishing an applicant's services] ... involves a two-step inquiry: First, what is the genus of goods or services at issue? Second, is the term sought to be registered ... understood by the relevant public primarily to refer to that genus of goods or services?

Id. Monster has not identified the genus of goods at issue in the Petition, nor has it alleged that the relevant public understands that SUPER CREATINE primarily refers to that genus of goods.

Monster merely alleges that “Super Creatine” has been widely used for years before the subject

registration and that it has been used for years by many different companies in the nutritional and

dietary space. Petition, p. 6 – 15. As such, Monster has not properly pled that SUPER CREATINE

has become generic and the Petition must be dismissed.

Additionally, Monster alleges that the “term ‘Super Creatine’ has been widely used for years before the subject registration…by many different companies in the nutritional and dietary space.” In supporting its claims regarding the Subject Registrations purported genericness,

Monster attempts to mislead the Board by relying on web.archive.org and citations to other

websites to show marks that have not been verified to actually have been used in commerce,

especially at the time JHO signed its application oath.

DISMISSAL OF COUNT II – IMPROPER USE OF A REGISTRATION NOTICE

Count II of the Petition should be dismissed on the grounds that the allegations are not

sufficiently specific and particular under Fed. R Civ. P. 9(b) and do not state a legally sufficient

claim of fraud (i.e., intent to deceive or mislead consumers).

Paragraph 45 alleges:

45. First, JHO attached a screenshot from VPX’s website of the BANG Pre-Workout Master Blaster product. In the description of the product, VPX includes a federal registration mark on “SUPER CREATINE,” thus claiming that the “SUPER CREATINE” term is registered even though no one had a registration on the term at that time, let alone VPX. VPX’s conduct violates section 906 of the USPTO’s Trademark Manual of Examining Procedure, which bars use of the federal registration symbol before the USPTO grants registration of a term.

Paragraph 49 alleges:

49. Finally, JHO attached a screenshot of a single post from a bodybuilding.com form that had pictures of BANG cans and advertised a live Q&A by Owoc at the “Arnold Sports Festival.” Again, the only use of “SUPER CREATINE” is on the cans and includes a federal registration symbol with the mark in violation of USPTO rules.

Paragraph 62 alleges:

62. JHO and/or its affiliates knowingly and willfully used the federal registration symbol in connection with the mark “SUPER CREATINE” on their BANG products and marketing before being granted registration. They did so with the intent to deceive or mislead consumers or others in the trade into the [sic] that the mark was registered and therefore add legitimacy to their products to increase sales.

Monster’s allegations in support of Count II are not sufficiently pled to provide that a one- time use of the “R” enclosed within a circle, “®” in an advertisement to promote the goods at issue was done with the intent to deceive and mislead consumers or others in the trade that the mark

“SUPER CREATINE” was registered.

In fact, it is Monster who is attempting to deceive and mislead the Board by representing to the Board, in paragraph 49, that the cans include a federal registration symbol, which they

clearly do not, and by failing to identify when and where that image was purportedly first published. For this reason, alone, Monster’s Count II should be dismissed, with prejudice, for seeking to commit fraud on the Board under this Count.

The Federal Rules of Civil Procedure are generally applicable in proceedings before the

Board. TBMP §101.02. Rule 9(b) of the Federal Rules governs allegations of fraud. Fraud in

procuring a trademark registration or renewal occurs when an applicant knowingly makes false,

material representations of fact in connection with his application. Torres v. Cantine Torresella

S.r.l., 808 F.2d 46, 48 (Fed. Cir. 1986). There is no fraud if a false misrepresentation (i.e.,

inadvertent and one-time use of the “®” symbol in an advertisement and not on the goods themselves) is occasioned by an honest misunderstanding or inadvertence without a willful intent to deceive. Smith Int'l, Inc. v. Olin Corp., 209 USPQ 1033, 1044 (TTAB 1981). The standard for

finding intent to deceive requires more than proof that the trademark applicant should have known

of the falsity of its material representations of fact. See In re Bose Corp., 580 F.3d 1240, 1246

(Fed. Cir. 2009). Fed. R. Civ. P. 9(b) requires that the pleadings contain explicit rather than

implied expression of the circumstances constituting fraud. King Auto., Inc. v. Speedy Muffler

King, Inc., 667 F.2d 1008, 212 USPQ 801, 803 (CCPA 1981). The Board will not approve

pleadings of fraud which rest solely on allegations that the trademark applicant made material

representations of fact in its declaration which it “knew or should have known” to be false or

misleading. In re Bose Corp., 1240 F.3d at 1246 (Fed. Cir., August 31, 2009).

Further, the subjective intent to deceive, however difficult it may be to prove, is an

indispensable part of the analysis. In re Bose Corp., 1240 F.3d at 1246 (Fed. Cir. 2009). Other

than the conclusory allegations in paragraph 62, Monster’s Petition is devoid of any allegations

that JHO (or VPX, its exclusive licensee of the Subject Registration) intended to deceive.

Subjective intent to deceive, however difficult it may be difficult to prove, is an indispensable element in the analysis. Of course, “because direct evidence of deceptive intent is rarely available, such intent can be inferred from indirect and circumstantial evidence. Rather than alleging deceptive intent, Monster’s allegations show that VPX’s use of the “®” symbol, was a one-time

occurrence, which cannot satisfy the deceptive intent requirement. Star Scientific, Inc. v. R.J.

Reynolds Tobacco Co., 537 F.3d 1357, 1366 (Fed. Cir. 2008). When drawing an inference of

intent, “the involved conduct, viewed in light of all the evidence ... must indicate sufficient

culpability to require finding of intent to deceive.” Kingsdown, 863 F.2d at 876.

“In alleging fraud or mistake, a party must state with particularity the circumstances

constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind

may be alleged generally.” Simply repeating, for the most part verbatim, the holding of

Copeland’s Enters. Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295, 1298 (Fed. Cir. 1991),

wherein the Federal Circuit held “improper use of a registration notice in connection with an

unregistered mark, if done with intent to deceive the purchasing public or others in the trade into

believing that the mark is registered, is a ground for denying the registration of an otherwise

registrable mark,” does not rise to the level of a sufficiently pleaded claim, especially one that

requires a showing of “subjective intent to deceive.” In fact, Monster’s allegations, on their face,

support dismissal of Count II. Alleging a mere one instance of using the “®” symbol next to the

mark SUPER CREATINE, not on or in connection with the mark, but in a small blurb on VPX’s

website does not rise to the level of pleading an intent to deceive. Monster failed to allege

sufficient underlying facts to support a reasonable inference that JHO knew its use of the “®”

symbol to be improper or that it intended to deceive anyone.

For these reasons, Count II should be dismissed, with prejudice, given that Monster cannot

plausibly allege a cause of action upon which relief may be granted.

DISMISSAL OF COUNT III – DECEPTIVENESS

Petitioner’s Count III should be dismissed without leave to amend. Monster, asserts at paragarpah 65 of the Petition that:

[t]he “Subject Registration in the BANG energy drink products is deceptive because it makes it appear to a reasonable consumer that the products will provide the consumers with the benefits of creatine when, in fact, consuming BANG has not been shown to provide consumers any benefits as a result of creatine release at all.

A mark is deceptive if (1) the proposed mark consists of or contains a term that misdescribes the character, quality, function, composition, or use of the goods; (2) prospective purchasers are likely to believe that the misdescription actually describes the goods; and (3) the misdescription is likely to affect the purchasing decision of a significant portion of relevant consumers. See In re Budge Mfg. Co., 857 F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988); In re White Jasmine LLC, 106 USPQ2d 1385, 1391-92 (TTAB 2013); 103 USPQ2d at 1579; see also

In re Spirits Int’l, N.V., 563 F.3d 1347, 90 USPQ2d 1489, 1493 (Fed. Cir. 2009) (holding that the test for materiality incorporates a requirement that a “significant portion of the relevant consumers be deceived”).

Monster argues that SUPER CREATINE is not creatine. However, within the four corners

of the Petition, specifically at paragraph 15, Monster provides that Bang energy drink contains

SUPER CREATINE, and that SUPER CREATINE is identified and defined as one of the

ingredients (i.e., Creatyl-L-Leucine [Creatine bonded to L-Leucine]) directly on the can. See

below.

Additionally, as stated above, the issues regarding whether JHO’s trademark SUPER

CREATINE is deceptive are not issues that the Board has jurisdiction over in a cancellation proceeding and, moreover, is already pending before a federal court in the California Action. As such, this claim should be dismissed.

Further, Monster’s allegation at paragraph 66 of its Petition is preposterous. Monster alleges

that JHO and VPX’s use of the registered mark SUPER CREATINE is deceptive because it

makes it appear to a reasonable consumer that the products will provide consumers greater (e.g.,

super) benefits than ordinary. The term “SUPER” is laudatory; i.e., a term that attributes quality

or excellence to goods. Despite the fact that such a term is generally considered weak and entitled

to a narrow scope of protection, these terms are still protectable and valid as trademarks. These

terms may acquire secondary meaning over time through extensive use and promotion. Further,

JHO has adopted the term SUPER based on the fact that the SUPER CREATINE compound was granted a U.S. patent, Pat. No. 8,445,466, which Monster acknowledges in its Petition. Petition for Cancellation at paragraph 17, fn. 2 and 3. Under U.S patent law, an invention is patentable only when it meets the following requirements: the invention must be (1) statutory; (2) new; (3) useful; and (4) non-obvious. JHO’s invention is “super” – it is the first aqueous stable creatine.

For these reasons, the Board should dismiss Monster’s claim that SUPER CREATINE is deceptive on the grounds that it fails to state a claim upon which relief can be granted.

DISMISSAL OF COUNT IV – NON-EXCLUSIVE USE OF SUBJECT REGISTRATION AT THE TIME OF APPLICATION

In Count IV (Registrant Did Not Have Exclusive Use of Subject Registration), Monster petitions to cancel the Subject Registration on the grounds that JHO “was not entitled to register the mark at the time of his [sic] application for registration.” Non-exclusive use of a mark on the

Supplemental Registrar at the time of application is not a ground for cancellation of the Subject

Registration. Monster asserts in paragraph 68 that:

Under 15 U.S.C. § 1092, if the Registrant was not entitled to register the mark at the time of his application for registration thereof, the registration shall be canceled. And pursuant to 15 U.S.C. § 1091, in order for an application to have been entitled to a registration on the Supplemental Register, there must have been “lawful use in commerce by the owner thereof, on or in connection with any goods or services….” Lawful use has been interpreted to mean exclusive use.

15 USC § 1092 states:

Marks for the supplemental register shall not be published for or be subject to opposition, but shall be published on registration in the Official Gazette of the Patent and Trademark Office. Whenever any person believes that such person is or will be damaged by the registration of a mark on the supplemental register—

(1) for which the effective filing date is after the date on which such person's mark became famous and which would be likely to cause dilution by blurring or dilution by tarnishment under section 1125(c) of this title; or (2) on grounds other than dilution by blurring or dilution by tarnishment,

such person may at any time, upon payment of the prescribed fee and the filing of a petition stating the ground therefor, apply to the Director to cancel such registration. The Director shall refer such application to the Trademark Trial and Appeal Board which shall give notice thereof to the registrant. If it is found after a hearing before the Board that the registrant is not entitled to registration, or that the mark has been abandoned, the registration shall be canceled by the Director. However, no final judgment shall be entered in favor of an applicant under section 1051(b) of this title before the mark is registered, if such applicant cannot prevail without establishing constructive use pursuant to section 1057(c) of this title.

15 U.S.C. § 1091 sets forth the grounds for a trademark application on the Supplemental Register:

(a) MARKS REGISTERABLE

In addition to the principal register, the Director shall keep a continuation of the register provided in paragraph (b) of section 1 of the Act of March 19, 1920, entitled “An Act to give effect to certain provisions of the convention for the protection of trademarks and commercial names, made and signed in the city of Buenos Aires, in the Argentine Republic, August 20, 1910, and for other purposes”, to be called the supplemental register. All marks capable of distinguishing applicant’s goods or services and not registrable on the principal register provided in this chapter, except those declared to be unregistrable under subsections (a), (b), (c), (d), and (e)(3) of section 1052 of this title, which are in lawful use in commerce by the owner thereof, on or in connection with any goods or services may be registered on the supplemental register upon the payment of the prescribed fee and compliance with the provisions of subsections (a) and (e) of section 1051 of this title so far as they are applicable. Nothing in this section shall prevent the registration on the supplemental register of a mark, capable of distinguishing the applicant’s goods or services and not registrable on the principal register under this chapter, that is declared to be unregistrable under section 1052(e)(3) of this title, if such mark has been in lawful use in commerce by the owner thereof, on or in connection with any goods or services, since before December 8, 1993.

(emphasis added). Nowhere does 15 U.S.C. § 1092 state that an applicant of an application on the

Supplemental Register must have exclusive use. Rather, it says that an applicant must have lawful use. Monster concludes that lawful use has been interpreted to mean exclusive use but cites no proposition for this conclusion.

The Supplemental Register is only for marks that are descriptive in nature. When an

applicant applies for a trademark on the Supplemental Register, under 15 USC § 1091, it signs an

oath that its use is “lawful use,” which is very different from a use-based application on the

Principal Register under 15 USC § 1051(a)3 where the applicant signs an oath that its use is

“exclusive.”

As such, the Federal Circuit and the Board have consistently held that a Supplemental

Bush Bros. & Co., 884 F.2d 569, 12 USPQ2d 1058, 1059 n. 2 (Fed. Cir. 1989). See also,

McCormick & Co., Inc. v. Summers, 354 F.2d 668, 148 USPQ 272 (CCPA 1966) (“registrations on the Supplemental Register do not receive the advantages of section 7(b) with regard to prima facie evidence of exclusive right to use”); Loma Linda Food Co. v. Thomson & Taylor Spice Co.,

279 F.2d 522, 126 USPQ 261, 263 (CCPA 1960). (“[T]he Lanham Act does not contemplate that

… registrations on the supplemental register … shall constitute constructive notice of the registrant’s claim of ownership”); Copperweld Corporation v. Arcair Company, 200 USPQ 470,

3 15 U.S.C. §1051 provides, in pertinent part: (a) APPLICATION FOR USE OF TRADEMARK (1) The owner of a trademark used in commerce may request registration of its trademark on the principal register hereby established by paying the prescribed fee and filing in the Patent and Trademark Office an application and a verified statement, in such form as may be prescribed by the Director, and such number of specimens or facsimiles of the mark as used as may be required by the Director. (2) The application shall include specification of the applicant’s domicile and citizenship, the date of the applicant’s first use of the mark, the date of the applicant’s first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark. (3) The statement shall be verified by the applicant and specify that— (A) the person making the verification believes that he or she, or the juristic person in whose behalf he or she makes the verification, to be the owner of the mark sought to be registered; (B) to the best of the verifier’s knowledge and belief, the facts recited in the application are accurate; (C) the mark is in use in commerce; and (D) to the best of the verifier’s knowledge and belief, no other person has the right to use such mark in commerce either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods of such other person, to cause confusion, or to cause mistake, or to deceive, except that, in the case of every application claiming concurrent use, the applicant shall— (i) state exceptions to the claim of exclusive use; and (ii) shall [1] specify, to the extent of the verifier’s knowledge— (I) any concurrent use by others; (II) the goods on or in connection with which and the areas in which each concurrent use exists; (III) the periods of each use; and (IV) the goods and area for which the applicant desires registration.

474 (TTAB 1978) (Ownership of a registration on Supplemental Register “does not constitute

prima facie evidence of registrant’s ownership of the mark, or of its exclusive right to use the mark

in commerce. In fact, it is not prima facie evidence of anything except that the registration

issued.”). A registration on the Supplemental Registrar does not give exclusive rights to the

registrant. Accordingly, non-exclusive use of a mark on the Supplemental Register at the time of

application (or anytime) is not a ground for cancellation of the Subject Registration.

Moreover, assuming, arguendo, that there is a cause of action for cancellation of the Subject

Registration based upon non-exclusive use at the time of application Monster’s screenshots from the

Wayback Machine do not sufficiently allege that the marks were actually used in commerce at the

filing of the application or that JHO knew that the marks were used in commerce.

Additionally, , Monster lacks standing as it has not pled that it is using the mark SUPER

CREATINE or a confusingly similar iteration thereof or that it wants to use the mark SUPER

CREATINE and nor can it, without violating JHO’s patent rights.

DISMISSAL OF COUNT V – FRAUD

Fraud in procuring a trademark registration occurs when an applicant for registration

knowingly makes specific false, material representations of fact in connection with an application

to register with the intent of obtaining or maintaining a registration to which it otherwise is not

entitled. In re Bose Corp., 580 F.3d at 1243, 91 USPQ2d 1938, 1939 (Fed. Cir. 2009). The nature

of the charge of fraud requires that it be proven “to the hilt” with clear and convincing evidence.

Id. “There is no room for speculation, inference or surmise and, obviously, any doubt must be

resolved against the charging party.’" Id. “[A] cancellation claim that the registration ‘was obtained

fraudulently’ requires more than a false representation; it requires, inter alia, that the false

representation be accompanied by deceptive intent” Embarcadero Techs., Inc. v. Delphix Corp.,

117 USPQ2d 1518, 1524 (TTAB 2016). The standard for finding intent to deceive is stricter than the standard for negligence and even gross negligence. In re Bose Corp., 580 F.3d at 1244-45, 91

USPQ2d at 1940-41.

“[F]raud will not lie against an applicant who holds an honest, good faith belief in its right to register a mark and signs an application with the statutorily prescribed ownership statement, which is phrased in terms of subjective belief.” Daniel J. Quirk, Inc. v. Village Car Co., 120

USPQ2d 1146 (TTAB 2016) (citing Woodstock’s Enters. Inc. (California) v. Woodstock’s Enters.

Inc. (Oregon), 43 USPQ2d 1440, 1443 (TTAB 1997), aff’d, 152 F.3d 942 (Fed. Cir. 1998)). To prevail on a fraud claim that the declaration or oath in a defendant’s application for registration was executed fraudulently, the party claiming fraud must allege particular facts, which, if proven, would establish that: (1) there was in fact another user of the same or a confusingly similar mark at the time the oath was signed; (2) the other user had legal rights superior to respondent’s; (3) respondent knew that the other user had rights in the mark superior to respondent’s, and either believed that a likelihood of confusion would result from respondent’s use of its mark or had no reasonable basis for believing otherwise; and that (4) respondent, in failing to disclose these facts to the Patent and Trademark Office, intended to procure a registration to which it was not entitled.

Qualcomm Inc., v FLO Corp., 93 USPQ2d 1768 (TTAB 2010).

JHO’s averment of that reasonable belief in its application declaration or oath is not

fraudulent. See Intellimedia Sports, Inc. v. Intellimedia Corp., 43 USPQ2d 1203, 1207 (TTAB

1997); Space Base, Inc. v. Stadis Corp., 17 USPQ2d 1216, 1220 (TTAB 1990) (no fraud where the party charged with fraud did not advise the examining attorney of an earlier-filed application and its opposition to it); cf. Colt Indus. Operating Corp. v. Olivetti Controllo Numerico S.p.A., 221

USPQ 73, 76 (TTAB 1983) (stating that there can be no fraud where priority was disputed).

Monster’s Petition fails to allege facts supporting its allegations that JHO knowingly and intentionally omitted the uses of the term “SUPER CREATINE” at the time the applicant signed the oath when the application was filed, which was on December 15, 2016. Further, the examples of other purported uses of SUPER CREATINE provided by Monster in its Petition at paragraphs 21 –

33 fail show (or plead) that the companies that allegedly sold products bearing the term SUPER

CREATINE were using this term on or in connection with goods similar or related to JHO’s goods at the time JHO signed the oath. Monster does not even attach copies from the Wayback Machine or pictures of the websites. Additionally, the example in paragraph 25 (December 2017) is after

JHO’s application date, the example in 24 includes a link to amazon.com of current sale of a product

(and not the Wayback Machine), and the examples in paragraphs 26 – 32 do not have alleged dates and are for current sales of products, which do not show that they predate JHO’s application.

The remaining allegations set forth in this count are equally futile in alleging fraud.

Monster’s allegation at paragraph 73 reads as follows:

73. JHO and Owoc knowingly and falsely represented to the USPTO that JHO was using the mark SUPER CREATINE with “its” drink BANG, attempting to deceive the USPTO in to believe that JHO sold the BANG drink.

This allegation, too, fails to sufficiently allege fraud. Again, “fraud will not lie against an applicant who holds an honest, good faith belief in its right to register a mark and signs an application with the statutorily prescribed ownership statement, which is phrased in terms of subjective belief.”

Further, it is well established that a trademark registrant, such as JHO, is entitled to claim ownership despite its desire to give another party, such as VPX, an exclusive license to use the mark on its products. Further, in this case, JHO and VPX are owned by the same single shareholder, John H. Owoc.

Monster’s allegation at paragraph 74 reads as follows:

74. JHO and Owoc knowingly and falsely represented to the USPTO that JHO owned and used the mark SUPER CREATINE, when just years before VPX applied for a trademark on the SUPER CREATINE mark and was denied.”

This allegation is preposterous and clearly fails to state a claim of fraud on the USPTO based on

declaration or oath signed by JHO in its application for registration. See Woodstock, 42 USPQ2d

at 1443 (TTAB 1997)

Monster’s allegation at paragraph 75 reads as follows:

75. JHO and Owoc knowingly and falsely represented to the USPTO that the BANG energy drink product contains creatine.

Again, “fraud will not lie against an applicant who holds an honest, good faith belief in its right to

is phrased in terms of subjective belief.” Daniel J. Quirk, Inc. v. Village Car Co., 120 USPQ2d

1146 (TTAB 2016) (citing Woodstock’s Enters., 43 USPQ2d at 1443 (TTAB 1997), aff’d, 152

F.3d 942 (Fed. Cir. 1998)).

The allegation in paragraph 75 also does not state a claim that rises to the level of fraud on the USPTO and is, in fact, contradicted by Monster’s own allegations. Specifically, at paragraph

15 of the Petition, the image provided by Monster clearly shows that BANG contains “Creatyl-L-

Leucine [Creatine bonded to L-Leucine]).” Emphasis added.

For this reason, alone, Monster has failed to allege facts, which, if proven, would establish this

allegation and basis for asserting fraud on the USPTO should be stricken and denied.

Monster’s allegation at paragraph 76 reads as follows:

76. JHO and Owoc knowingly and intentionally omitted the numerous and widespread use of the term “SUPER CREATINE” that showed that JHO’s claim that the “SUPER CREATINE mark has become distinctive of the goods/services was patently false.”

Again, “fraud will not lie against an applicant who holds an honest, good faith belief in its right

to register a mark and signs an application with the statutorily prescribed ownership statement, which

is phrased in terms of subjective belief.” Daniel J. Quirk, 120 USPQ2d 1146 (TTAB 2016) (citing

Woodstock’s Enters., 43 USPQ2d at 1443 (TTAB 1997), aff’d, 152 F.3d 942 (Fed. Cir. 1998)).

21 In this case, Monster failed to plead sufficient facts, which if proven, would establish the first three elements of the fraud claim. Petitioner’s conclusory allegations that the statements in the application declaration were false are not supported by a pleading of sufficient facts which, if proven, would establish that JHO believed (1) there was in fact another user of the same or a confusingly similar mark at the time the oath was signed, (2) the other users had legal rights superior to respondent’s; and (3) the other users had rights in the mark superior to its SUPER

CREATINE mark. See Intellimedia Sports, 43 USPQ2d at 1207 (TTAB 1997).

Accordingly, Monster’s charges of fraud should be dismissed, without leave to amend.

CONCLUSION

For the foregoing reasons, this motion should be GRANTED in its entirety, dismissing

Monster’s Petition for Cancellation.

Dated: July 8, 2019 Respectfully submitted by, Erica W. Stump, Esq.

By: /s/ Erica W. Stump Erica W. Stump, Esq. Erica W. Stump, P.A. 110 E. Broward Boulevard, Suite 1700 Fort Lauderdale, FL 33301 Telephone No.: (954) 828-2334 Email: [email protected]

and

Marc J. Kesten 1600 North Park Drive Weston, FL 33326 Telephone No: (954) 641-0570 (ext. 293) Email: [email protected]

Attorneys for Registrant, JHO Intellectual Property Holdings, LLC

CERTIFICATE OF SERVICE

I, Erica W. Stump, hereby certify that on July 8, 2019, a true copy of this document described as “REGISTRANT’S CORRECTED MOTION TO DISMISS UNDER RULE

12(b)(1) and 12(b)(6), AND MEMORANDUM IN SUPPORT THEREOF” was sent via email and ESTTA to:

Attorneys for Petitioner John C. Hueston, Esq. Hueston Hennigan LLP 523 W. 6th Street, Suite 400 Los Angeles, CA 90014 E-mail: [email protected], [email protected], [email protected], [email protected], [email protected]

/s/ Erica W. Stump Erica W. Stump

EXHIBIT “1” Case 5:18-cv-01882-JGB-SHK Document 61 Filed 04/03/19 Page 1 of 48 Page ID #:592

EXHIBIT "1" 1 John C. Hueston, State Bar No. 164921 [email protected] 2 Moez M. Kaba, State Bar No. 257456 [email protected] 3 Steven N. Feldman, State Bar No. 281405 [email protected] 4 HUESTON HENNIGAN LLP 523 West 6th Street, Suite 400 5 Los Angeles, CA 90014 Telephone: (213) 788-4340 6 Facsimile: (888) 775-0898

7 Attorneys for Plaintiff MONSTER ENERGY COMPANY, a Delaware 8 Corporation

9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 MONSTER ENERGY COMPANY, a Case No. 5:18-cv-1882 Delaware corporation, 13 PLAINTIFF MONSTER ENERGY Plaintiff, COMPANY’S FIRST AMENDED 14 COMPLAINT FOR: vs. 15 1. Violation of the Lanham Act VITAL PHARMACEUTICALS, INC., 16 d/b/a VPX Sports, a Florida corporation; 2. Unfair Competition and JOHN H. OWOC a.k.a. JACK 3. False Advertising 17 OWOC, an individual, 4. Trade Libel 18 Defendants. 5. Intentional Interference with

19 Contractual Relations 6. Intentional Interference with 20 Prospective Economic Advantage 21 7. Conversion 8. Larceny 22 9. False Patent Marking 23 10. Violation of the California Uniform 24 Trade Secrets Act 11. Violation of the Defend Trade 25 Secrets Act 26 12. Violation of the Computer Fraud

27 and Abuse Act

28 DEMAND FOR JURY TRIAL

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1 Plaintiff Monster Energy Company (“Monster”) brings this action against 2 Defendants Vital Pharmaceuticals, Inc., d/b/a VPX Sports (“VPX”), and John H. Owoc 3 a.k.a. Jack Owoc (“Owoc”) (collectively, “Defendants”) and alleges as follows: 4 I. INTRODUCTION 5 1. Fueled by flagrant consumer deception and systematic anti-competitive 6 businesses practices, BANG energy drink has experienced significant market growth. 7 Monster brings this suit to halt these practices, and hold Defendants VPX and Owoc 8 accountable. 9 2. VPX and Owoc’s bad acts are damaging, dangerous, and despicable. 10 Defendants lie to consumers, promising that BANG, for example, will build lean 11 muscle and improve brain function. They cheat government regulators, ignoring 12 health and safety laws that provide essential protections to the public. They steal 13 from competitors, rewarding employees for poaching valuable in-store shelf space to 14 which competitors have a contractual right. And they brazenly misappropriate 15 confidential and trade secret information, promising Monster employees jobs and 16 high incomes if they bring Monster’s proprietary information to VPX. 17 3. In fact, BANG’s main pitch to consumers is a hoax. The product’s chief 18 marketing draw is its “Super Creatine,” a chemical compound that Owoc claims can, 19 among other things, fight depression and reverse “mental retardation.” As it turns 20 out, BANG’s “Super Creatine” compound is neither “super” nor “creatine.” In fact, 21 despite what Bang prominently claims on its cans, there is no creatine in BANG. 22 And even VPX’s own research shows that unlike real creatine, the “Super Creatine” 23 compound is essentially useless when ingested by consumers. 24 4. Aside from being false, Defendants’ claims about what Super Creatine 25 can do also directly violate U.S. Food and Drug Administration (“FDA”) regulations 26 prohibiting manufacturers from making unauthorized health claims about their 27 products. 28 - 2 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 5. But Defendants’ unfair conduct doesn’t stop with false advertising and 2 illegal labeling. They have also systematically interfered with competitors’—chiefly, 3 Monster’s—sales and contractual rights, by rewarding employees and distributors for 4 stealing valuable in-store shelf space. Monster’s shelf space is BANG’s primary 5 target. 6 6. Defendants know that this shelf space is not theirs to take. In the 7 beverage industry, shelf space is often determined by contract between retailers and 8 product vendors. Those contracts are extremely valuable, impact consumer behavior, 9 and typically take years to earn. By short-circuiting this normal competitive process, 10 VPX is not only stealing a contractual right from Monster, it is also effectively 11 stealing sales and goodwill. 12 7. VPX and Owoc are also attempting to steal Monster’s trade secrets and 13 employees. Recently, a VPX manager for the BANG product offered a long-time 14 Monster employee a job with one express precondition: steal Monster’s confidential 15 information, including proprietary pricing data. When the Monster employee 16 stopped the conversation and told the VPX manager that his request was unethical, 17 the VPX manager terminated the phone call. 18 8. While VPX’s tactics were repelled on that occasion, other attempts by 19 VPX to steal Monster’s trade secrets and employees appear to have succeeded. VPX 20 recently hired three Monster employees, and in one instance, Monster discovered that 21 the former employee had not only lied about returning his Monster-issued electronic 22 devices and proprietary documents, but had also downloaded five USB sticks of 23 confidential and proprietary information shortly before his departure. That former 24 employee had no legitimate business reason to download or store those reams of data 25 and did so contrary to Monster policy and his contractual obligations. 26 9. Monster has also confirmed that the former employee accessed and 27 likely used the stolen data for VPX’s gain. Metadata analysis has shown that he 28 continued to open the stolen files after he departed Monster and even after he began - 3 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 working at VPX. 2 10. VPX and Owoc’s unfair conduct related to BANG is part of a larger 3 pattern of rule breaking. Over the years, VPX and Owoc have been reprimanded by 4 the FDA for putting dangerous and untested chemicals in their products; censured by 5 the Better Business Bureau for making false claims about their products’ potency; 6 credibly accused of creating sham “studies” to prove up their products; and sued over 7 a hundred times for conduct ranging from wage-and-hour violations to unlawful 8 discrimination to shirking on debts. 9 11. The most unfortunate part of Bang’s wide-ranging illegal scheme is that 10 it appears to have worked. VPX’s refusal to play by the rules has artificially boosted 11 its sales at the expense of competitors and consumers alike. This suit will put an end 12 to these practices, and protect Monster, its consumers, and the public. 13 II. PARTIES 14 12. Monster is a Delaware corporation with its principal place of business at 15 1 Monster Way, Corona, California 92879. Monster develops, markets, and sells 16 energy drinks. Monster’s products are sold throughout the United States, including 17 California, and more than 150 other countries. Monster is the best-selling energy 18 drink brand in the United States by both unit count and dollar value. Since 2002, 19 Monster has spent over $5 billion advertising, promoting, and marketing its brand 20 and products. 21 13. Defendant VPX is a Florida corporation with its principal place of 22 business at 1600 North Park Drive, Weston, Florida 33326. VPX also develops, 23 markets, sells, and distributes energy drinks. 24 14. Defendant John H. Owoc is the founder, CEO, Chief Scientific Officer, 25 and owner of VPX. He is a citizen of Florida. 26 27 28 - 4 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 III. JURISDICTION AND VENUE 2 15. This Court has subject matter jurisdiction because the parties are diverse 3 and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. 4 Additionally, the Court has subject matter jurisdiction because the case involves 5 federal law (the Lanham Act, 35 U.S.C. § 292, 18 U.S.C. § 1836 et. seq, and 18 6 U.S.C. § 1030 et. seq.) and related state claims (such as California’s Unfair 7 Competition Law). See 28 U.S.C. §§ 1331, 1338. 8 16. This Court has personal jurisdiction over VPX because it conducts 9 business in the State of California. Among other things, VPX sells and distributes 10 BANG to California residents and businesses through a network of fifteen direct 11 store distributors in California, retailers, direct sales on the internet (e.g., www.bang- 12 energy.com), and other means; VPX advertises and promotes BANG to California 13 residents and businesses through the internet, social media, BANG labels, and other 14 forms of marketing; VPX has employees and/or independent contractors in 15 California; and VPX has instructed employees to interfere with Monster’s 16 contractual rights to in-store shelf space at California retail locations.1 17 17. California is a particularly important market for VPX. An industry 18 publication recently reported that while BANG holds only a 4% market share 19 nationally, it is approaching a 10% share in West Coast markets. 20 18. This Court has jurisdiction over Owoc because he has directed the VPX 21 activities described above and herein. As VPX’s founder, CEO, and Chief Scientific 22 Officer, Owoc personally oversees all of its corporate operations, including product 23 development, testing, quality control, manufacturing, distribution, marketing, media, 24 and sales. Owoc is an integral part of VPX’s day-to-day operations and has been 25 1 26 Based on Monster’s initial investigation, it appears that Defendants have tortiously interfered with Monster’s contractual rights throughout California, including in 27 Sacramento, Woodland, Roseville, Yuba City, Orangeville, Studio City, Culver City, Watsonville, Escalon, Fresno, Los Angeles, Rio Linda, Auburn, Oceanside, 28 Livermore, Fremont, King City, Hayward, Garden Grove, Anaheim, Fremont, Rocklin, and Corona. - 5 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 since its inception. Moreover, as shown below, Owoc personally appears in many of 2 VPX’s advertisements and aggressively promotes BANG on his own social media 3 accounts, including @bangenergy.ceo on Instagram. Owoc also serves as a director 4 on the board of Virun, Inc., which is headquartered in Pomona, California. 5 19. Venue is proper because a substantial portion of the events or omissions 6 giving rise to this action occurred and are occurring in this District. See 28 U.S.C. 7 §§ 1391(b)-(c). 8 IV. FACTUAL BACKGROUND 9 A. VPX’s and Owoc’s History of Flouting the Rules 10 20. VPX began producing dietary supplements in 1993. Starting with its 11 very first products, VPX has recklessly shot first and asked questions later. As an 12 early profile of the company explained: “A drug company, like Pfizer or Merck, 13 typically needs eight years to get a product from the lab to the consumer. In a mere 14 two months, a VPX energy drink can go from Owoc’s brain to machines that each 15 churn out 230 bottles a minute—and then to store shelves.” VPX’s company ethos 16 was as follows: “Get something to market, get it there fast, and make sure it tingles.” 17 21. VPX’s decision to follow that mantra has proven disastrous for 18 consumers. VPX “exploded to prominence with the help of energy and weight-loss 19 products containing ephedra”—an unsafe supplement later banned by the FDA after 20 it was “conclusively linked to cases of healthy adults suddenly falling ill or even 21 dying.” See HARVARD MED. SCH., Why The FDA Banned Ephedra (March 2004). 22 Even after the fallout from the FDA ban, Owoc was unapologetic for including this 23 deadly supplement in his products. When asked about the tragic case of a 23-year- 24 old professional athlete who died after taking ephedra, Owoc was dismissive of 25 ephedra’s impact: “[He] was a fat guy exercising in the heat.” Never mind that the 26 autopsy said otherwise.2 27 2 28 Murray Chase, Pitcher’s Autopsy Lists Ephedra as One Factor, N.Y. TIMES (March 14, 2003). - 6 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 22. After the ban on ephedra, VPX turned its attention to its Redline 2 drink—a product designed to induce involuntary shivering as a means to lose weight. 3 “It is a physiological fact that when you shiver, your body releases a large amount of 4 stored body fat in an attempt to bring body temperature back to normal,” explained 5 VPX in Redline’s marketing material. 6 23. In 2015, VPX earned a Warning Letter from the FDA for selling 7 adulterated and illegal dietary supplements. The FDA had discovered that VPX was 8 selling products containing a synthetic stimulant called DMBA that had never been 9 studied in humans and could pose “a significant or unreasonable risk of illness or 10 injury.” The FDA ordered VPX to “immediately cease” all distribution. 11 24. VPX has continued to put untested and potentially dangerous chemicals 12 in its products. VPX products are the subject of a current enforcement action by the 13 Oregon Attorney General. That action alleges that several VPX products contain 14 BMPEA—a synthetic chemical “similar to amphetamine,” “never studied in 15 humans,” linked to “hemorrhagic stroke,” and banned by the World Anti-Doping 16 Agency. Despite the Oregon enforcement action, those VPX products are still 17 offered for sale. 18 B. VPX and Owoc’s Track Record of Consumer Deception 19 25. VPX has engaged in consumer deception from the start. Even its name 20 is deceptive: Vital Pharmaceuticals is not a pharmaceutical company. 21 26. VPX’s company logo and nickname are likewise designed to confuse 22 consumers. The VPX mark mimics the well-known symbol for prescription drugs: 23 24 25 26 27 28 - 7 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 In Owoc’s words, “the acronym VP(x) actually stands for Vital Pharmaceuticals with 2 the X appearing lower than VP similar to how it appears in RX.” The FDA has 3 explained why this misleads: “use of the prescription drug symbol ‘Rx’ . . . may 4 deceive consumers into thinking they are purchasing a prescription drug without a 5 prescription.” 6 27. VPX’s deceptive tactics do not end with its name. VPX’s entire business 7 is built around making bold—but false—claims about the health benefits of its 8 products. 9 28. Indeed, a cornerstone of VPX and Owoc’s deception is weaponized faux 10 “science,” designed to impress and confuse the public. They have gone to great 11 lengths to manufacture an image as a “science” company. In their early years, VPX 12 even included a “syringe-like device with some products to lend a hard-core feel.” 13 29. VPX’s basic formula is to make an impressive-sounding proclamation 14 about the benefits of a product, then cite official-looking “studies” that VPX itself 15 funded as purported proof of that claim. Given that the VPX studies are illegitimate, 16 VPX apparently assumes that consumers either won’t bother reading the studies or 17 don’t have the scientific acumen to understand them. 18 30. VPX’s marketing ploy has been denounced by the National Advertising 19 Division (NAD)—an independent investigative arm of the Better Business Bureau— 20 on three separate occasions. 21 31. In 2010, for example, the NAD reviewed VPX’s claims that its 22 “Meltdown” product was the “World’s 1st Fat Burning Drink” and was “University 23 Proven To Burn Fat for 6+ and Increase Fat Utilization by 56%.” VPX had also 24 claimed that “a study presented at the June 2008 International Society of Sports 25 Nutrition Conference . . . left scientists scratching their heads” about how “Meltdown 26 is over 273% better than the infamous caffeine plus ephedrine stack.” 27 32. None of that was true. The NAD found that VPX “overstated the results 28 of the research,” misleadingly drew comparisons to “unrelated studies,” and used - 8 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 data “insufficiently reliable to support the claims.” 2 33. As another example, Owoc often touts the “unprecedented 27 Double- 3 Blind Placebo Controlled Gold Standard University Human Test Subject Studies 4 validating [VPX’s] products’ safety and effectiveness” available on VPX’s website 5 (see https://bang-energy.com/vpx-university-studies/). This entire paragraph is 6 false. 7 34. Every study listed on the website was funded by VPX—hardly the 8 independent and “unprecedented” validation Owoc’s statement implies. Moreover, 9 there are only 24 studies (all VPX funded), not 27. Three of the studies listed on 10 VPX’s website are duplicates, included either out of disregard for details or a 11 conscious attempt to inflate the purported body of research supporting VPX 12 products. 13 35. Moreover, all but three of the studies on VPX’s website are published 14 by the so-called “International Society of Sports Nutrition” (ISSN). In 2008, when 15 VPX first began publishing with the ISSN, ISSN’s “CEO” was Jose Antonio. Mr. 16 Antonio also happened to be a paid employee of VPX and held the title of “Sports 17 Science Director.” He remained on the VPX payroll through at least 2013. During 18 this time, VPX ran 20 “studies” with ISSN. To this day, the ISSN website 19 prominently lists VPX as one of the organization’s sponsors. Mr. Antonio also 20 continues to affiliate with VPX, and recently appeared in multiple videos on Owoc’s 21 Instagram page to promote a new “study” regarding BANG that ISSN apparently 22 intends to publish. 23 24 25 26 27 28 - 9 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 36. Another critical part of VPX’s consumer deception is the myth it has 2 created about Owoc. As noted above, Owoc is the founder, CEO, “Chief Scientific 3 Officer,” and owner of VPX. Owoc directs VPX’s business activities, purportedly 4 “invents” its products, and plays a key role in VPX’s marketing efforts. Defendants 5 have used Owoc’s control over VPX to further mislead consumers, portraying him as 6 a credentialed scientist who consumers can trust for health advice: 7 8 9 10 11 12 13 14 15 16 17 18 19 37. In VPX’s own words: “VPX is orchestrated by the world’s leading 20 authority, author, and developer of performance enhancing supplementation and 21 physique-altering nutrition, Founder and CEO, Jack Owoc.” 22 38. Another VPX press release suggests that consumers should trust Owoc’s 23 “unrivaled scientific acumen,” because he has “9 years of teaching, 6 different 24 science disciplines, 7 issued patents, and 27 university studies under [his] belt.” 25 39. In fact, Owoc’s lone “scientific” credential is having been a (substitute) 26 teacher in a local school district. Owoc does not appear to hold a degree in any 27 scientific discipline. Nor has he held a position at any research university, worked as 28 a research scientist, or presided over any university studies. - 10 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 40. Owoc holds views that would be, to say the least, unconventional for a 2 world-leading scientist. He is part of the anti-vaccination movement, having posted 3 a list on Facebook of “30 Scientific Studies Showing the Link between Vaccines and 4 Autism.” He also believes that microwaves pose an urgent health risk, imploring his 5 followers to “Destroy your Microwave before it Destroys YOU!” (Microwaves 6 apparently cause “a breakdown of the human ‘life-energy field.’”) 7 41. Owoc’s representations that he is an “author” are equally misleading. 8 At one time or another, he has claimed to have written at least six books: “SUPER 9 CREATINE,” “BANG: The Death of Concentrates,” “BANG: Bodybuilding 10 Blueprint,” “BANG: The Future of Muscle Appearance & Performance 11 Enhancement,” “Meltdown Body Redesign,” and “The Meltdown Anti-Diet” 12 (sometimes called the “Bang Anti-Diet”). These books do not exist. Or if they do, 13 they are locked up where only VPX and Owoc can read them. Owoc has now been 14 promising to release his “Anti-Diet” book for over three years. 15 C. VPX and Owoc’s Promotion of BANG 16 42. Owoc and VPX save their most deceptive marketing for their most 17 popular product: the BANG energy drink.3 18 43. BANG is labeled and marketed as “potent brain and body fuel.” 19 According to VPX and Owoc, Bang will “beef up [both] your muscles and your 20 brain.” For example, VPX and Owoc claim that BANG can simultaneously provide 21 “an 11.2% increase in the collegiate athlete’s ability to perform repetitions” and also 22 deliver “ingredients [that] have been proven to improve brain function.” 23 24 25 26

27 3 VPX began selling BANG to consumers in 2012. VPX currently produces and sells over a dozen flavors of BANG, including caffeine-free flavors. 28

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1 44. VPX attributes most of the health benefits in BANG to one ingredient: 2 Super Creatine. “Super Creatine” is VPX’s marketing name for a creatyl-L-leucine 3 molecule, and VPX identifies it as BANG’s primary draw. The words “Super 4 Creatine” are prominently placed at the top of each BANG can and are nearly as 5 conspicuous as the BANG brand name itself: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 45. Owoc tells consumers that Super Creatine is what sets BANG apart 2 from competitors. On social media, Owoc offered to answer consumer questions as 3 part of his effort to do “#CEO stuff” (Owoc’s words). He was asked: “What’s the 4 benefit of drinking bang over Monster zero or other sugar free energy drinks?” His 5 first answer? “Super Creatine which is a patented creatine-amino acid peptide that’s 6 stable [in] water.” 7 46. According to Owoc and VPX, the Super Creatine compound is an elixir. 8 Here are some of the things they have claimed about it: 9 x Super Creatine can “reverse Sarcopenia (loss of skeletal muscle).” 10 x Super Creatine has “anti-depressive effects.” 11 x Super Creatine “increases cell swell which increases protein synthesis.” 12 x Super Creatine can provide “6.9 Pounds of Water-Retention-Free Lean 13 Mass in just 4 Weeks!” 14 x Super Creatine increases “cognition” and “attention span.” 15 x Super Creatine “increases IGF-1 and satellite cell activation (IGF-1 and 16 satellite cells are essential for muscle growth).” 17 x Super Creatine can “increase [users’] I.Q.” 18 x Super Creatine is “neuroprotective in the brain” and has “antioxidant 19 effects in the brain.” 20 Or as Owoc sums it all up, Super Creatine “can make you ripped like Rambo and 21 smart like Picasso.” 22 47. All of those claims, however, pale in comparison to this one: that Super 23 Creatine “helps with all forms of dementia, including Alzheimer’s, Parkinson’s, 24 Huntington’s, and other forms of dementia.” The cure to these tragic diseases has 25 evaded the medical profession for decades. It isn’t hiding in a can of BANG. 26 27 28 - 13 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 48. Owoc uses junk science to support these claims. As he explained on 2 YouTube: “As you age, you have ‘Creatine Transport Deficiency Syndrome,’ where 3 creatine does not cross the ‘Blood Brain Barrier’ as well as it does when you are 4 younger. Because of this, as you age you become mentally retarded. . . . We have 5 great news though. We could possibly reverse that with these new creatine peptides 6 that I’ve patented.”4 7 8 9 10 11 12 13 14 15 16 17

18 49. Owoc in fact asserts that his “patented” Super Creatine compound “can 19 cross the ‘Blood Brain Barrier’ 20 times more efficiently than regular creatine,” 20 which is what makes it so effective at fighting “Alzheimer’s, Parkinson’s, 21 Huntington’s, and other forms of dementia.” 22

28 4 https://www.youtube.com/watch?v=_hYcTX9jYr0&feature=youtu.be - 14 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 D. Super Creatine Provides No Health Benefit to Consumers 2 50. If Owoc’s promises about BANG’s Super Creatine sound too good to be 3 true, that’s because they are. BANG’s Super Creatine has proven to have three 4 scientific flaws—any one of which renders the Super Creatine in BANG impotent 5 and VPX’s advertising misleading. 6 51. First, Super Creatine is not creatine. Creatine is an amino acid that 7 naturally occurs in the human body. Athletes commonly take creatine supplements 8 in the form of creatine monohydrate. Super Creatine—a marketing name that VPX 9 created—refers to creatyl-L-leucine, which is a fundamentally different molecule. 10 52. And contrary to statements on BANG’s label, there is no creatine in 11 BANG. Dr. Neil Spingarn—a pharmacologist with a Ph.D. from Yale University 12 and more than 40 years of experience—has tested multiple formulations of BANG to 13 determine its creatine content. Each time, Dr. Spingarn could not detect any amount 14 of creatine in BANG. See Exhibit A. 15 53. Second, the Super Creatine compound is functionally useless. Studies 16 show that Super Creatine does not break down at the acidity levels of stomach acid, 17 meaning it passes through the body largely unutilized. 5 And even when the Super 18 Creatine compound is exposed to acidity levels in which it can break down, it does 19 not release creatine. Research has instead demonstrated—and VPX’s own data 20 supports—that the Super Creatine compound transforms directly into a waste 21 compound called creatinine (not creatine)6—which VPX has described as a “useless 22 substance.” 23

24 5 Reddeman, R., et al. “A Toxicological Assessment of Creatyl-L-Leucine,” 37 INT. 25 J. TOXICOLOGY 171-187 (2018) at 171 (citing Owoc, J., et al. “Effect of Pepsin on Creatyl L-Glutamine (CLG), 2014, unpublished data). 26 6 See, e.g., Burov, S, et al. “Creatinyl Amino Acids – New Hybrid Compounds with Neuroprotective Activity,” 17 J. PEPTIDE SCI. 620-626 (2011) at Figure 5; see also 27 Reddeman, R., et al. “A Toxicological Assessment of Creatyl-L-Leucine,” 37 INT. J. TOXICOLOGY 171-187 (2018) at 179. 28 (Continued...) - 15 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 54. Third, even if Super Creatine could break down into creatine, there is 2 not enough of it in BANG to materially impact the body. While VPX conceals how 3 much Super Creatine is in BANG, product testing shows that there are fewer than 40 4 milligrams in one can. That is roughly 100 times less than the amount of creatine 5 necessary to provide a measurable health benefit.78 VPX knows this. It advises 6 consumers that “researchers found that athletes looking to get the most gains in size 7 and strength should include 4-6 grams [4,000 to 6,000 milligrams] of creatine before 8 and 4-6 grams [4,000 to 6,000 milligrams] of creatine after exercise.” Moreover, 9 VPX cited studies in its patent application that analyze creatine supplementation 10 regimens at even higher levels—some of which were 500 times the dose included in 11 BANG.9 12 55. VPX’s marketing of “Super Creatine” is misleading for all of the 13 independent reasons above. When consumers hear “Super Creatine,” they 14 reasonably expect to receive all the benefits of creatine and possibly more. But in 15 truth, those consumers receive no health benefit whatsoever from Super Creatine. 16 17 18 19 20 7 21 See https://efsa.onlinelibrary.wiley.com/doi/pdf/10.2903/j.efsa.2011.2303 (“The Panel considers that in order to obtain the claimed effect, 3 g of creatine should be 22 consumed daily.”); https://ods.od.nih.gov/factsheets/ExerciseAndAthleticPerformance- 23 HealthProfessional/ 8 This value is a weight-to-weight comparison of creatyl-L-leucine in a can of BANG 24 versus the beneficial daily dose of creatine. When compared using a molecule-to- molecule basis, BANG performs even worse, having about 165 times fewer molecules 25 of creatyl-L-leucine than the amount of creatine molecules requ ired for a beneficial effect. 26 9 Rawson et al., Effects of Creatine Supplementation and Resistance Training on 27 Muscle Strength and Weightlifting Performance, J. OF STRENGTH & CONDITIONING RESEARCH, 2003, Vol. 17(4), 822-831; Buford et al., International Society of Sports 28 Nutrition position stand: creatine supplementation and exercise, J. OF THE INT’L SOCIETY OF SPORTS NUTRITION, Aug. 2007, Vol. 4(6). - 16 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 56. VPX contributes to this confusion by purposefully conflating the 2 worthless “Super Creatine” compound with real creatine. Each can of BANG states: 3 “Power up with BANG’s potent brain & body-rocking fuel: Creatine, Caffeine, 4 CoQ10 & BCAAs,” even though there is no actual creatine in BANG: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

20 57. Similarly, in an article published by VPX entitled “The Benefits of 21 Taking Super Creatine Pre- and Post-Workout,” VPX cites studies and research 22 about regular creatine yet claims those health effects for the Super Creatine 23 compound. On Defendants’ social media, most posts about BANG end with the 24 hashtag “#creatine” or “#IceColdCreatine.” 25 58. VPX further stokes this confusion by referring to BANG as a “pre- 26 workout” drink. Many BANG energy drink advertisements, for example, include the 27 hashtag #PreWorkout. But as VPX’s own studies and products show, pre-workout 28 - 17 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 drinks typically contain thousands of milligrams of real creatine, not dozens of 2 milligrams of a different, worthless chemical. 3 59. Consumers care about the quantity of the active ingredients in their pre- 4 workout drinks. They have asked Owoc on social media how much “Super 5 Creatine” is in BANG. He doesn’t respond. “Unfortunately, that is proprietary 6 information,” Owoc says. 7 E. VPX and Owoc Falsely Mark BANG as “Patented” 8 60. Keeping with their pattern of using weaponized faux “science” to 9 confuse the public, VPX and Owoc rely heavily on the false claim that the “Super 10 Creatine” in BANG is patented technology. Owoc often directs consumers to U.S. 11 Patent Number 8,445,466 (the “’466 patent”), which Owoc claims is his patent on 12 the Super Creatine compound. Owoc says that he and “many others” believe that 13 patent to be “the most important patent ever awarded” in the “history of sports 14 nutrition,” and gloats that “Monster has no answer to contend with Jack Owoc’s 15 Patented Super Creatine.” 16 61. VPX and Owoc print the ’466 patent number on each can of BANG— 17 twice. They also include on each can substantially the entire title of the ’466 patent 18 and an image of the U.S. patent seal. This is far more than what is required under 35 19 U.S.C. § 287(a) for sufficient patent marking and reflects VPX and Owoc’s 20 intentional use of the ’466 patent number as part of a broader marketing campaign. 21 62. By printing the ’466 patent number on each can of BANG, VPX and 22 Owoc represent that the beverage actually practices the ’466 patent. It does not and 23 stating that it does is false. 24 63. Each claim of the ‘466 patent requires “a biologically active form of 25 creatine.” Although the term “biologically active” is not defined in the ’466 patent, 26 the context of the ’466 patent—which describes at length the significant health 27 benefits of real creatine—makes clear that a “biologically active” form of creatine 28 must be one that provides at least some health benefit to a person who consumes it. - 18 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 But there is no evidence that Super Creatine carries any health benefit, either by itself 2 or because it breaks down into creatine in the human body. 3 64. VPX and Owoc can point to no study showing that creatyl-L-leucine 4 provides any health benefit to humans. Indeed, even the VPX-published January 5 2019 article entitled “The Benefits of Taking Super Creatine Pre and Post-Workout” 6 pointed to no such evidence, and instead relied on studies about real creatine—not 7 “Super Creatine.” Presumably, if Defendants had any evidence supporting the claim 8 that creatyl-L-leucine carries health benefits, they would have cited the evidence in 9 that article. 10 65. In fact, VPX’s own data suggests that creatyl-L-leucine provides no 11 health benefit. As part of its unsuccessful bid to persuade the Patent Office that the 12 claims of the ‘466 patent were valid, VPX disclosed its testing of Super Creatine.10 13 That testing showed that when Super Creatine breaks down, it breaks down into 14 useless creatinine—not creatine.11 In addition, a study commissioned by VPX that 15 relied on Owoc for information, acknowledged that “the digestive and metabolic fate 16 of CLL [creatyl-L-leucine] is unknown,” and described the possibility that “some 17 level of ingested CLL may be digested or catabolized into L-leucine and creatine” as 18 only “a hypothetical potential.”12 19 66. It is therefore clear that VPX and Owoc have no reasonable basis to 20 claim, and knew it was false to state, that “Super Creatine” practices the ’466 patent. 21 Instead, they make that claim to deceive the public, and as part of a broader 22 marketing scheme to falsely hold VPX out as a company that is scientifically and 23 technologically superior to its competitors. 24 10 25 See, e.g., Declaration of Liangxi Li in Support of Appeal Brief filed August 29, 2018 in Re-Exam Application No. 90/013,933, Exhibit C. 26 11 See id. 12 27 Reddeman, R., et al. “A Toxicological Assessment of Creatyl-L-Leucine,” 37 INT. J. TOXICOLOGY 171-187 (2018) at 179; see also id. at 184 (“[I]t is unknown whether 28 CLL is digested to creatine in the digestive tract or absorbed and metabolized to creatine in vivo, and if so, to what extent.”). - 19 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 67. But there’s more: the patent upon which Owoc and VPX rely so heavily 2 has been finally rejected by the U.S. Patent Office during a reexamination 3 proceeding. In February 2018, a panel of three patent examiners finally rejected all 4 pending claims in the ’466 patent as “obvious” in light of prior disclosures by other 5 inventors, and in March 2019, the U.S. Patent Trial and Appeals Board affirmed the 6 final rejection of all pending claims in the ’466 patent. 7 68. Yet that has not stopped VPX or Owoc from continuing to mark each 8 can of BANG with the ‘466 patent number. Even the flavors of BANG that were 9 released after the Patent Office rejected the Super Creatine patent are marked with it. 10 This is the back of the “FROSE ROSE” can, released February 14, 2019: 11 12 13 14 15 16 17 18 19

20 69. Nor did the final rejection of the ’466 patent’s claims stop VPX from 21 including the ’466 patent in its marketing materials. In December 2018, for example, 22 Owoc posted on social media that his “[competitors] wouldn’t have a clue as to what 23 small changes to make in order to create an epic and brilliant tasting beverage 24 innovation with cutting-edge patented ingredients like Super Creatine.” And on 25 January 24, 2019, Owoc again referred consumers to “my patented super creatine.” 26 70. In fact, VPX and Owoc have continued to advertise the ’466 patent 27 today even after the patent’s final rejection on March 5, 2019 by the U.S. Patent Trial 28 - 20 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 and Appeals Board. On March 18, 2019, for example, Owoc advertised a BANG 2 product as “fast, potent, effective, and delicious” and containing “ၔPatented Super 3 Creatine.” And VPX’s website continues to provide the following description of a 4 BANG product: “The very definition of BANG® screams scientific 5 BREAKTHROUGH! Infused with Patented water-stable SUPER CREATINE® — 6 BANG® triggered a major PARADIGM SHIFT among the performance and 7 bodybuilding authorities and has now become the most disruptive scientific 8 innovation in the 30-year history of Sports Nutrition!” 9 71. One informed consumer recently asked Owoc on Instagram: “Really 10 interested in the US Patent office canceling the Super Creatine patent. Tell me that’s 11 bullshit . . . ” Once again, when faced with a hard question, Owoc didn’t respond. 12 F. VPX and Owoc Ignore Health and Safety Regulations 13 72. There’s a reason VPX’s health claims about its “magnificent invention” 14 have stood out in the marketplace. Other retailers refrain from making such claims 15 because they’re illegal. 16 73. Congress and the FDA have enacted comprehensive protections 17 governing the production and distribution of food. 21 U.S.C. § 301 et seq. These 18 laws and regulations are essential to protect the public. VPX and Owoc not only 19 ignore them, they have put their antipathy towards these regulations on the record. 20 Following the defeat of a federal dietary supplement statute in 2010, Owoc posted on 21 the VPX website: “The fact is that American consumers love their dietary 22 supplements and want less, not more regulation. . . Therefore I declare all 23 organizations and individuals who threaten the great Dietary Supplement Industry as 24 UNAMERICAN! WE THE PEOPLE DEMAND AN END TO YOUR 25 TOMFOOLERY!” 26 1. Super Creatine is Not “Generally Recognized as Safe” 27 74. One critical FDA regulation ensures that dangerous new chemicals can’t 28 make their way into foods. See 21 CFR 170.30. That regulation requires that any - 21 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 substance deliberately added to food receive pre-clearance from the FDA unless that 2 substance is “Generally Recognized as Safe” (GRAS) by qualified experts. To 3 qualify as GRAS, a product must be proven safe under the conditions of its intended 4 use with the same quality and quantity of scientific evidence required to obtain FDA 5 preclearance. Id. 6 75. Super Creatine is not GRAS. Even the single study published about 7 Super Creatine13, which was paid for by VPX, is at best equivocal about Super 8 Creatine’s safety.14 The authors noted, for example, that the Super Creatine 9 compound is a “novel ingredient” whose “metabolic fate . . . is unknown.” In other 10 words, the study acknowledges that no one is sure how the Super Creatine compound 11 reacts with the body. 12 76. The authors also noted that “no formal toxicological, pharmacokinetic, 13 or human studies on the combined compound have been published.” Therefore, the 14 authors wrote that “[f]uture investigations of CLL in pharmacokinetics and 15 nonrodent species would be valuable additions to the currently available research.” 16 But the time for safety studies on “nonrodent species” was years ago—before VPX 17 put Super Creatine in BANG. 18 77. Moreover, the study uncovered several “statistically significant” adverse 19 health effects associated with Super Creatine use. Rodents exposed to the Super 20 Creatine compound suffered, among other things, negative impacts on their “organ 21 weight to brain ratio,” “organ weight to body ratio,” and blood composition 22 (including decreases in “mean hemoglobin” and “platelet count”). 23 24 25 13 See Reddeman supra n. 5. 26 14 GRAS status cannot be based on non-public information. See Final Rule on 27 GRAS Substances, 81 Fed. Reg. 54960, 54966 (Aug. 17, 2016) (“[T]here could be no basis for a conclusion of GRAS status if trade secret information (or other non- 28 public information) is necessary for qualified experts to reach a conclusion that the notified substance is safe under the conditions of its intended use.”). - 22 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 2. VPX and Owoc Make Unlawful Health Claims 2 78. Other FDA regulations prevent consumers from being misled about 3 their health. To that end, the FDA generally prohibits food manufacturers from 4 claiming that their product can treat or reduce the risk of a disease or a health-related 5 condition. See 21 C.F.R. § 101.14. The FDA provides a narrow exception to this 6 general prohibition: it authorizes certain “Health Claims” when a clear scientific 7 relationship has been proven between a substance and a disease. To illustrate, the 8 FDA allows claims about Calcium and Osteoporosis, see 21 C.F.R. § 101.72, and 9 about some vegetables and coronary heart disease, see 21 CFR § 101.77. 10 79. VPX and Owoc flout these regulations. Ignoring the fact that the FDA 11 does not authorize Health Claims for creatine—much less “Super Creatine” (which 12 does not include creatine)—Owoc and VPX repeatedly claim that Super Creatine 13 can, among other things, “reverse Sarcopenia,” help fight depression, and reverse 14 “mental retardation.”15 15 80. The FDA likewise does not authorize any Health Claims for 16 Alzheimer’s, Parkinson’s, Huntington’s, or dementia.16 Those currently incurable 17 diseases are entirely off limits. 18 81. In a recent update to consumers, the FDA described why Health Claims 19 like the ones made by Owoc and VPX about Alzheimer’s are both incorrect and 20 insidious.17 The FDA explained that products claiming to “prevent, treat, delay, or 21 even cure Alzheimer’s disease . . . fly in the face of true science.” What that true 22 23 15 See FDA, Authorized Health Claims That Meet the Significant Scientific 24 Agreement (SSA) Standard (last accessed March 26, 2019), available at https://www.fda.gov/food/labelingnutrition/ucm2006876.htm (listing the approved 25 Health Claims). 16 26 Id. 17 See FDA, Watch Out for False Promises About So-Called Alzheimer’s Cures (last 27 accessed March 26, 2019), available at https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm631046.htm. 28 (Continued...) - 23 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 science shows is that “no cure or treatment has been shown to stop or reverse the 2 progression of the disease.” Anyone claiming otherwise is a “scam artist” taking 3 “advantage of people when they are most vulnerable and looking for a miracle 4 cure.”18 5 82. Much of the FDA consumer update on Alzheimer’s could have been 6 written about Owoc and VPX: 7 FDA Guidance Owoc’s Statement 8 “Question any product that also claims “People, this is a magnificent invention! 9 to be a ‘scientific breakthrough.’” Remember, take your BANG drink!” 10 “Another red flag is that many of the Super Creatine “increases cognition, it 11 claims made by these companies about delays mental fatigue, it has 12 the supposedly curative powers of their antidepressant effects, and has 13 products are often not limited to antioxidant effects on the brain. It has 14 Alzheimer’s disease.” all these positive things!” 15 Companies cannot promise to “reverse “We could possibly reverse [mental 16 mental decline associated with retardation] with these new creatine 17 dementia.” peptides that I’ve patented.” 18 3. VPX and Owoc Make Unlawful Structure/Function Claims 19 83. The FDA permits truthful and scientifically sound claims that describe 20 the role of a dietary ingredient in the human body. See 21 CFR § 101.93. These are 21 called “Structure/Function Claims” and do not require FDA preclearance. For 22 example, a manufacturer may lawfully state that “fiber maintains bowel regularity.” 23 84. The claims VPX and Owoc make about BANG fall outside these narrow 24 guideposts. Indeed, Owoc goes well beyond describing the connection between 25 basic ingredients and their proven biological properties; instead, he makes specific 26 claims about VPX’s unique products. He has stated, for example, that VPX “can 27

28 18 Id. - 24 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 possibly reverse [mental retardation] with these new creatine peptides I’ve invented.” 2 Other claims flunk the Structure/Function standard because they are not backed by 3 sufficient scientific proof. For example, VPX’s claim that BCAAs are “potent brain 4 . . . fuel” is contradicted by all reputable science.19 5 G. VPX and Owoc Falsely Disparage Competing Energy Drinks 6 85. VPX and Owoc also falsely disparage their competitors while touting 7 BANG’s false and misleading claims. Again, VPX anchors their false statements in 8 “science.” Printed on every can of BANG is the following: “Make no Mistake – 9 BANG is not your stereotypical high sugar, life-sucking soda masquerading as an 10 energy drink! High sugar drinks spike blood sugar producing metabolic mayhem 11 causing you to crash harder than a test dummy into a brick wall.” 12 86. In a May 10, 2017 press release entitled “The BANG Revolution,” Owoc 13 claimed that BANG stands alone as the world’s healthiest energy drink. While 14 promoting BANG’s purported—but false—health benefits, Owoc described other 15 energy drinks as “health robbing” and “health destroying.” Owoc claimed that, 16 with BANG, “no longer do people have to sacrifice their health for a great tasting 17 beverage.” 18 87. Owoc and VPX also repeatedly and misleadingly compare BANG—a 19 diet, no-sugar product—with their competitors’ non-diet products. Yet they never 20 disclose to consumers that their comparison involves unlike goods. Through this 21 apples-to-oranges comparison, Owoc and VPX create the false impression that all 22 other energy drinks are high in sugar and calories. This impression is false. 23 88. In fact, more than one-third of Monster-branded energy drink offerings 24 are either low sugar or sugar free. This includes two of Monster’s best-selling and 25

26 19 See European Food Safety Authority, Scientific Opinion (last accessed March 26, 27 2019), available at https://efsa.onlinelibrary.wiley.com/doi/pdf/10.2903/j.efsa.2010.1790 at 3 (“[T]he 28 Panel concludes that a cause and effect relationship has not been established between the consumption of BCAA and improvement of cognitive function after exercise.”). - 25 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 most popular products: Monster Ultra Zero and Lo-Carb Monster Energy. 2 89. VPX and Owoc’s attacks on Monster have gotten more explicit with 3 time. In a recent VPX press release entitled “BANG’s JACK OWOC BLASTS 4 MONSTER ENERGY INTO SUBMISSION!,” VPX included the following graphic: 5 6 7 8 9 10 11 12 13 14 15 16 VPX stacked the deck, opting against comparing itself to one of Monster’s many no- 17 sugar and no-calorie options, and instead cherry-picking a comparator that competes 18 with different energy drinks entirely (full-sugar energy drinks). 19 20 21 22 23 24 25 26 27 28 - 26 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 90. Most recently, Owoc posted an animated video on his Instagram 2 account (“bangenergy.ceo”) showing a can of BANG knocking over a can of 3 Monster and declaring in baritone: “CHECKMATE BITCH!” Owoc wrote a 4 comment providing the purported basis for BANG’s victory: that “HIGH SUGAR 5 ‘ENERGY DRINKS’ . . . MAY INCREASE THE RISK OF BREAST CANCER, 6 HEART ᧈ DISEASE, OBESITY, BLOOD PRESSURE, METABOLIC 7 SYNDROME, FATTY LIVER, DIABETES, REDUCED ENERGY ETC.!”20 8 9 10 11 12 13 14 15 16 17 18 19 20

21 22 91. Again, none of Owoc’s disparaging remarks about Monster are 23 supported by science. In fact, the only study Owoc cited states the exact opposite— 24 that the consumption of Monster is “not associated with adverse cardiovascular or 25 renal effects in healthy young college-aged students.”21 26

27 20 https://www.instagram.com/p/BupPT4KHonI/ 21 28 Wilson, T., et al. Effects of Monster Energy Drink on Cardiovascular and Renal Functioning Young Adults. (2016) Int J Food Nutr Sci 3(2): 350-353. - 27 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 92. VPX and Owoc make other false distinctions between BANG and its 2 competition. For example, Owoc claimed that BANG is the “only” energy drink 3 with “no artificial ingredients.” That’s nonsense. Almost every ingredient in BANG 4 is artificial—including Super Creatine—and the BANG can itself states it contains 5 “artificial flavors.” 6 H. VPX and Owoc Have Deceived Consumers and Harmed Competitors 7 93. Owoc and VPX’s efforts to mislead consumers have worked. VPX 8 started selling BANG in 2012. Today, sales of BANG account for nearly 4% of the 9 energy drinks sold in the United States. Owoc claims that BANG is on track to 10 generate more than $2 billion in sales in 2019. And BANG experienced a 784.2% 11 growth in sales in 2018 alone. 12 94. Comments on VPX’s own social media sites and other review websites 13 show that BANG’s rapid growth is a result of consumer deception, faux science, 14 false patent marking, and false comparisons with Monster and other competitors. 15 95. Some consumers are drawn in by VPX’s representations that it is a 16 “science” company. One reviewer of the product wrote: “So if you’re trying to work 17 out to gain muscle, become super physically fit, do some hardcore workouts, Bang is 18 going to be right for you. I mean it’s made by a sports nutritional supplement 19 company so that’s what you can expect from it.” Another wrote: “This is not a 20 normal energy drink like monster or red bull. This is a pre-workout system.” 21 Another recommended BANG because it was supported by “Real Science” and is 22 “way better for you than any other energy drink on the market.” Countless others 23 parrot Owoc in stating that they choose BANG for the “overall healthiness compared 24 to all the other energy drinks out there.” 25 26 27 28 - 28 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 96. Given VPX and Owoc’s emphasis on Super Creatine, other consumers 2 are naturally drawn to the product thinking that it contains significant amounts of real 3 creatine. For example, consumers have said the following about BANG: 4 x “Want some creatine? Get a bang.” 5 x “It’s the best creatine I ever had from the bottom of my heart.” 6 x “Is there really any benefits to Bang over Monster? . . . Bang has Super 7 Creatine.” 8 x “They are packed full of creatine so they make a great preworkout drink.” 9 x “I like this product as a pre workout drink for the gym. The creatine helps 10 with pumps, gives good energy and have great lifts when taking it.” 11 x “[I]t acts as my creatine supplement too!” 12 x “I noticed the ‘Super-Creatine’ around the rim lol I normally take a more 13 traditional pre workout but found these on sale so I figured I’d try them.” 14 x “The creatine in there is actually something very special . . . It is the world’s 15 only water stable creatine. . . . It also has a fatty acid chain that makes it easier 16 to cross the blood brain barrier. The focus of the super creatine is not for 17 muscle function, but for cognition . . . by combining this form of creatine with 18 creatine, it works synergistically for mental focus.” 19 x “They add BCAAs plus something called Super Creatine to this formula so 20 you can feed your muscles. Creatine in a Ready to Go Drink is a big deal 21 because creatine usually cannot survive (stay potent) in water until BANG 22 patented their Super Creatine.” 23 Each and every one of these consumers has been deceived. 24 25 26 27 28 - 29 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 97. VPX’s misconduct has also distorted the retail market. One online 2 retailer recently announced that it would not carry Monster’s performance energy 3 drink because it did not contain “Super Creatine.” That retailer issued the following 4 statement about its decision: 5 6 7 8 9 10 11

12 98. It is therefore clear that VPX’s false claims are doing damage in the 13 marketplace. Or you can just take Owoc’s word for it. He wrote that “Monster has 14 no answer to contend with Jack Owoc’s Patented Super Creatine – perhaps the most 15 significant and prestigious invention in the history of the beverage industry.” Put 16 another way, Owoc himself believes that BANG is succeeding because of Super 17 Creatine. 18 I. VPX and Owoc Use “Guerilla Tactics” to Interfere with Monster’s 19 Contractual Rights 20 99. Owoc and VPX’s illegal tactics are not limited to their marketing, 21 advertising, and labelling. They have also instructed their representatives across the 22 country to engage in “guerilla tactics” to frustrate the normal competitive process. 23 100. One critical way that VPX and Owoc have short-circuited the normal 24 competitive process is by stealing in-store shelf space from competitors. In the 25 beverage industry, shelf-space is often a matter of contract between retailers and 26 manufacturers. So when a distributor for Brand X goes to re-stock Store Y, he 27 knows exactly where to place his product in Store Y’s cooler. He also knows where 28 - 30 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 he cannot put his product. Stores circulate diagrams of whose drinks go where— 2 called “planograms”—to manufacturers and distributors. 3 101. It can take a long time to earn prime space in the planogram. To 4 maximize sales, stores want the best products in the best shelf space. Thus, products 5 placed at eye level—the location most likely to be noticed by a consumer—are those 6 with track records of success. 7 102. Product placement is not only reflective of consumer preference, but 8 also influences it. An eye-level placement is an important signal to a consumer that a 9 given product is proven and popular. And at a more basic level, eye-level placement 10 ensures that a product will be seen. Because of these dynamics, shelf-space location 11 materially impacts a product’s sales. 12 103. This all creates powerful incentives for a bad actor to steal a 13 competitor’s contractual right to shelf space, and that is exactly what VPX has done. 14 According to former VPX employees, VPX has directed BANG representatives to 15 displace competing energy drinks—primarily Monster—from their contractually 16 guaranteed shelf space and replace it with BANG. Those BANG representatives 17 were also required to document the theft with photographs, which were then 18 distributed widely within VPX. Indeed, VPX employees were rewarded for taking 19 part in this illegal conduct. 20 104. According to a former VPX employee, Monster had the biggest target 21 on its back. Monster has contracts for in-store shelf space with some of the largest 22 retailers in the United States, including Walmart, Circle K, AMPM, and American 23 Gas & Oil, as well as numerous local retailers. These contracts cost Monster more 24 than $90 million annually. Not only does Monster have premier shelf space at these 25 locations, it also has the most shelf space to steal because of its popularity. 26 105. Owoc has essentially admitted to orchestrating this scheme. He posted 27 on social media: “In life when they tell you there’s no shelf space – make your own 28 shelf space! When multibillion-dollar competitors pay for space retaliate with a - 31 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 vengeance.” Later, he posted a picture of a retail store and commented: “It can be a 2 hostile takeover or we can do things nicely – either way the time has cometh upon us 3 to assume control.” 4 106. Across the country, Monster representatives have observed the effects of 5 VPX’s tactics. Based on Monster’s preliminary investigation, VPX’s concerted 6 effort to steal Monster’s space has been observed almost daily for several months 7 from coast to coast in the contiguous United States, including in Arkansas, 8 California, Delaware, Florida, Illinois, Louisiana, Maryland, Michigan, Minnesota, 9 Missouri, New Mexico, Nevada, New Hampshire, Ohio, South Carolina, and 10 Texas.22 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

26 22 In one example, a Monster representative discovered that VPX had replaced half of 27 a shelf of Monster product with BANG. After asking a store employee for information, the Monster representative learned that VPX had transferred all of the 28 displaced Monster product to a storage room and put them in a cardboard box labeled “expired,” even though the product was fresh and not expired. - 32 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 107. Below are two examples, where VPX snuck BANG into cooler space 2 reserved exclusively for Monster products: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 33 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 108. VPX also designed a cover up for this theft. According to a former 2 employee, VPX told BANG representatives not to worry about the propriety of these 3 actions, since any violation would be blamed on the store manager. 4 109. VPX and Owoc are in line to profit from this rule breaking. The shelf 5 space that they stole from Monster and other competitors has both short-term and 6 long-term payoffs. In the short-term, that shelf space converts into increased brand 7 awareness, sales, and profits—all of which have enabled VPX’s ill-gotten growth. In 8 the long-term, VPX can parlay their artificial sales numbers into other benefits. 9 110. Planograms, for example, are re-negotiated between retailers and 10 manufacturers annually based largely on the prior year’s sales numbers. Because 11 VPX elbowed its way into significant sales over the last year, VPX is likely to gain a 12 toehold in retail stores across the country when the planograms are re-negotiated. 13 VPX has similarly used its artificial sales numbers to get picked up by a major 14 distribution company—which will compound the effects of VPX’s unfair 15 competition for years to come. 16 J. VPX and Owoc Pirate Monster’s Trade Secrets 17 111. Shelf space isn’t the only thing that VPX and Owoc steal from 18 competitors. They steal trade secrets too. 19 112. Monster’s pricing model—one of its most valuable trade secrets—is the 20 industry’s gold standard. Because of Monster’s advanced supply-chain strategies 21 and sophisticated analytics, its pricing data is extremely valuable. Monster protects 22 this data as confidential and diligently safeguards it from misappropriation. 23 113. VPX and Owoc have targeted this valuable data with precision. They 24 have designed to steal Monster’s pricing information by offering Monster employees 25 plum jobs, insisting that they bring Monster’s confidential pricing data to VPX as a 26 precondition of employment, and falsely assuring those employees that it is okay to 27 do so. 28 114. In fact, VPX has offered Monster employees exorbitant salary increases, - 34 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 demonstrating that VPX is paying for not just a new employee but also all of the 2 Monster information, including its confidential and proprietary data, that the 3 employee can provide. 4 115. VPX recently attempted this very scheme. Late last year, a long-time 5 Monster employee was contacted by Pat McMahon, VPX’s National Account 6 Manager for the BANG product. McMahon’s recruiting efforts came with a catch: 7 the Monster employee would be required to steal Monster’s pricing information and 8 bring it to VPX. 9 116. The Monster employee told McMahon that he had crossed the line and 10 halted the conversation. McMahon insisted that such behavior was acceptable, and 11 in the process admitted that he himself stole Red Bull’s pricing information when he 12 moved from Red Bull to VPX earlier in 2018. Unpersuaded, the Monster employee 13 told McMahon that he would never betray an employer like that. McMahon then 14 ended the conversation, reaffirming to the Monster employee that stealing Monster’s 15 pricing data was a non-negotiable prerequisite. 16 117. While that one attempt to steal Monster’s trade secrets was stymied, 17 other attempts by VPX appear to have worked. Indeed, Monster has confirmed that 18 at least one of its former employees has misappropriated its trade secrets for VPX’s 19 benefit. 20 118. That former employee’s misappropriation was multi-faceted. He 21 interviewed at VPX on December 4, 2018 and immediately thereafter began 22 forwarding several commercially sensitive Monster e-mails to his personal address. 23 Before leaving Monster, he loaded five USB drives with additional Monster 24 proprietary and confidential data, including valuable pricing-information trade 25 secrets. And upon his departure, in violation of Monster policy, the employee failed 26 to return his Monster-issued devices—which contained additional commercially 27 sensitive and confidential information—despite representing that he had done so. 28 119. That former Monster employee has exploited Monster’s confidential - 35 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 data while working at VPX. After he began work at VPX, his Monster-issued device 2 has been active and in use. Moreover, a metadata analysis has shown that he 3 continued to open the stolen files on the USB drives after he departed Monster and 4 even after he began working at VPX. 5 K. VPX and Owoc’s Illegal Acts Irreparably Harm Monster 6 120. By engaging in the false advertising, intentional interference with 7 Monster’s contractual rights, and other illegal acts described above, VPX has sold 8 more BANG and taken more market share from competitors—primarily Monster— 9 than it otherwise would have been able to realize. In 2018 alone, BANG experienced 10 a 784.2% growth in sales. And a national publication recently reported that BANG’s 11 sales increased nearly 900% from mid-February to mid-March 2019, while Monster 12 experienced a 1.7% decrease in sales. Even according to Owoc, the stakes are 13 substantial and the timing is urgent. As he recently proclaimed, “Bang Energy is 14 positioned to potentially take over a billion dollars in market share from Monster in 15 2019.” 16 FIRST CAUSE OF ACTION (Violation of Section 43(a) of the Lanham Act, 15 § U.S.C.) 17 18 121. Monster incorporates all other allegations in this complaint. 19 122. Defendants have made false and misleading statements of fact about 20 BANG energy drinks. Those statements misrepresent the nature, characteristics, 21 and/or qualities of BANG and are expressly false, impliedly false, or both. 22 Defendants have misrepresented the health benefits of BANG. BANG cannot, for 23 instance, reverse “mental retardation” or treat Alzheimer’s. They have also deceived any 24 consumers about BANG’s contents. For example, BANG does not contain 25 creatine, much less some “super” form of it, or provide any of the health benefits 26 associated with creatine. 27 123. Defendants have knowingly induced and/or caused third parties— 28 including retailers—to engage in additional acts of false advertising by repeating - 36 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 Defendants’ false statements. 2 124. Defendants knew or should have known that their advertising activities 3 were false, misleading, and deceptive. 4 125. Defendants’ false and misleading statements have deceived and have the 5 tendency to deceive a substantial segment of their intended audience about matters 6 material to purchasing decisions. Defendants’ violations have caused harm to the 7 public and, unless restrained, will further damage the public. 8 126. Defendants’ BANG energy drinks are offered in interstate commerce. 9 Similarly, Defendants’ false and misleading statements were and are made in 10 commercial advertising and promotion in interstate commerce. 11 127. Defendants’ violations have proximately harmed Monster. As a result 12 of Defendants’ violations, Monster has suffered and will continue to suffer damage 13 to its business and goodwill. Monster has and will lose sales and profits and incur 14 increased advertising and marketing costs. 15 128. Monster’s immediate, irreparable injuries have no adequate remedy at 16 law, and Monster is entitled to injunctive relief and up to three times its actual 17 damages and/or an award of Defendants’ profits, as well as costs and Monster’s 18 reasonable attorney fees under 15 U.S.C. §§ 1116–17. 19 SECOND CAUSE OF ACTION (Violation of California’s Unfair Competition Law (“UCL”) under 20 California Business and Professions Code §§ 17200, et seq.)

21 129. Monster incorporates all other allegations in this complaint. 22 130. California’s UCL provides a private right of action against any person 23 who engages in “unfair competition.” Any person who has “suffered injury in fact 24 and has lost money or property as a result of the unfair competition” may bring suit. 25 The UCL has three “prongs,” prohibiting any “unlawful,” “fraudulent” or “unfair” 26 business act or practice. 27 131. Defendants have violated the “unlawful prong” because their conduct 28 violates several state and federal laws and regulations. Defendants’ marketing of - 37 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 BANG violates: (1) California’s False Advertising Law; (2) the Federal Lanham Act; 2 (3) the Federal Food, Drug, and Cosmetic Act (“FDCA”) and implementing 3 regulations; and (4) California’s Sherman Food, Drug, and Cosmetic Law, which 4 incorporates the FDCA labelling law into California law. 5 132. Defendants have violated the “fraudulent prong” by misleading the 6 public. Defendants have systematically overstated the health benefits of BANG. 7 BANG cannot, for instance, reverse “mental retardation” or treat Alzheimer’s. They 8 have also deceived consumers about BANG’s contents. For example, BANG does 9 not contain any creatine, much less some “super” form of it, or provide any of the 10 health benefits associated with creatine. 11 133. Defendants have violated the “unfair prong” because their conduct 12 violates public policy. As embodied in California’s False Advertising Law and 13 Sherman Law, California has a strong policy in favor of truthful advertising— 14 particularly when public health is on the line. Defendants’ conduct also violates this 15 prong because it is unethical and unscrupulous. Defendants have implemented a 16 scheme to harm competitors by making false claims about competing products and 17 stealing in-store shelf space. 18 134. Defendants’ unlawful, unfair, and fraudulent practices have caused and 19 continue to cause substantial and irreparable competitive and commercial injury to 20 Monster. Monster has lost and will continue to lose sales, profits, goodwill, and 21 advertising as a result of Defendants’ conduct. Monster also has incurred and will 22 incur increased advertising and marketing costs to counteract defendants’ unlawful 23 conduct. 24 135. These substantial injuries are not outweighed by any countervailing 25 benefits to consumers, particularly because of California’s policy in favor of truthful 26 advertising. 27 136. Unless restrained, Defendants will continue to cause further competitive 28 and commercial harm to Monster. - 38 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 137. Monster has no adequate remedy at law and is entitled to injunctive 2 relief and restitution under Section 17203 of the California Business and Professions 3 Code. 4 THIRD CAUSE OF ACTION 5 (Violation of California’s False Advertising Law (“FAL”) under California Business and Professions Code §§ 17500, et seq.) 6 7 138. Monster incorporates all other allegations in this complaint. 8 139. California’s FAL prohibits “untrue or misleading” statements in “any 9 advertising device . . . or in any other manner or means whatever, including over the 10 internet” concerning “any circumstance or manner of fact” about a product. 11 140. Defendants advertise in the state of California and this District with the 12 intent to increase the sale of BANG in California and to induce the public into 13 purchasing BANG. 14 141. Defendants conduct violates the FAL. They have made false and 15 misleading descriptions of fact about BANG energy drinks. Those statements 16 misrepresent the nature, characteristics, and/or qualities of BANG and are expressly 17 false, impliedly false, or both. Defendants have systematically overstated the health 18 benefits of BANG. BANG cannot, for instance, reverse “mental retardation” or treat 19 Alzheimer’s. They have also deceived consumers about BANG’s contents. For any 20 example, BANG does not contain creatine, much less some “super” form of it, or 21 provide any of the health benefits associated with creatine. 22 142. Defendants knew or should have known that their advertising activities 23 are false, misleading, and deceptive. 24 143. Defendants’ false and misleading statements have deceived and have the 25 tendency to deceive a substantial segment of their intended audience about matters 26 material to purchasing decisions. 27 144. Defendants’ violations have proximately harmed Monster. As a result 28 of Defendants’ violations, Monster has suffered and will continue to suffer damage - 39 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 to its business and goodwill. Monster has lost and will continue to lose sales and 2 profits and incur increased advertising and marketing costs. 3 145. Defendants have acted with oppression, fraud, or malice, entitling 4 Monster to an award of punitive damages. 5 146. Defendants have acted willfully, in bad faith, and with malice. Unless 6 restrained, Defendants will continue to cause further irreparable competitive and 7 commercial injury to Monster. 8 147. Monster has no adequate remedy at law and is entitled to injunctive 9 relief and restitution pursuant to Section 17203 of the California Business and 10 Professions Code. 11 FOURTH CAUSE OF ACTION 12 (Trade Libel) 148. Monster incorporates all other allegations in this complaint by reference. 13 149. Defendants have published false statements that disparage the quality of 14 Monster’s products. Defendants have claimed, for example, that Monster drinks are 15 “health destroying,” have “zero effect on performance,” and increase the risk of 16 breast cancer and heart disease. And they have published false materials that mislead 17 consumers into believing that all Monster drinks are, among other things, “a high 18 sugar, life-sucking soda.” 19 150. Defendants knew or should have known that their statements were false 20 and would be relied on by consumers in making purchasing decisions. They knew or 21 should have known that consumers would reasonably understand their statements to 22 mean that Monster drinks are inferior to BANG. 23 151. As a proximate result of Defendants’ false statements and consumers’ 24 reliance thereon, Monster has suffered direct financial harm. Monster has suffered 25 and will continue to suffer special damages in the form of lost sales and profits, loss 26 of goodwill, and increased advertising and marketing costs. 27 28 - 40 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 FIFTH CAUSE OF ACTION 2 (Intentional Interference with Contractual Relations ) 152. Monster incorporates all other allegations in this complaint. 3 153. Monster has contractual relations with retailers of energy drinks across 4 the United States, including Walmart, Circle K, AMPM, and American Gas & Oil, as 5 well as with individual stores affiliated with brands like Shell, Chevron, and Harman 6 Star Mart. These contracts determine what shelf space Monster is entitled to at each 7 retailer. 8 154. At all relevant times, Defendants knew or should have known of these 9 contracts. It is well known in the beverage industry that shelf space is allocated by 10 contract. Furthermore, the in-store diagrams showing the placement of products— 11 called planograms—are often circulated to all manufacturers and distributors and 12 posted inside retail locations. 13 155. Defendants intentionally and improperly have interfered and continue to 14 interfere with Monster’s contractual relations with retailers. They have instructed 15 employees to engage in the “guerilla tactic” of unlawfully converting Monster’s 16 contractually guaranteed shelf space for Defendants’ own use. 17 156. There is no legitimate justification for Defendants’ tortious interference 18 with Monster’s contractual relations with retailers. 19 157. As a proximate result of Defendants’ interference, Monster has suffered 20 and will suffer irreparable harm and monetary damages by, among things, (i) losing 21 revenue and profits, (ii) losing sales of its products, (iii) damage to its reputation and 22 goodwill, and (iv) damage to its relationships with retailers. 23 158. Defendants have acted willfully, in bad faith, with malice, or with the 24 intent to oppress Monster. Monster is entitled to injunctive relief, compensatory 25 damages, and punitive damages. 26 SIXTH CAUSE OF ACTION 27 (Intentional Interference with Prospective Economic Relations) 28 159. Monster incorporates all other allegations in this complaint. - 41 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 160. Monster has contractual relations with retailers of energy drinks across 2 the United States, including Walmart, Circle K, AMPM, and American Gas & Oil, as 3 well as with individual stores affiliated with brands like Shell, Chevron, and Harman 4 Star Mart. These contracts determine what shelf space Monster is entitled to at each 5 retailer. 6 161. At all relevant times, Defendants knew or should have known of these 7 contracts and Monster’s reasonable business expectancy of the economic benefits 8 arising from such contracts. It is well known in the beverage industry that shelf space 9 is allocated by contract. It is also well known that these contracts are re-negotiated 10 annually based on the prior year’s sales. Furthermore, the in-store diagrams showing 11 the placement of products—called planograms—are often circulated to all 12 manufacturers and distributors and posted inside retail locations. 13 162. Defendants intentionally and improperly have interfered and continue to 14 interfere with Monster’s economic relations with retailers. They have instructed 15 employees to engage in the “guerilla tactic” of unlawfully converting Monster’s 16 contractually guaranteed shelf space for Defendants’ own use. 17 163. There is no legitimate justification for Defendants’ tortious interference 18 with Monster’s economic relations with retailers. 19 164. As a proximate result of Defendants’ interference, Monster has suffered 20 and will suffer irreparable harm and monetary damages by, among things, (i) losing 21 revenue and profits, (ii) losing sales of its products, (iii) damage to its reputation and 22 goodwill, and (iv) damage to its relationships with retailers. 23 165. Defendants have acted willfully, in bad faith, with malice, or with the 24 intent to oppress Monster. Monster is entitled to injunctive relief, monetary damages 25 to compensate for the loss benefits of its reasonable business expectancies, 26 consequential damages caused by Defendants’ intentional interference, 27 compensatory damages, and punitive damages. 28 - 42 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 SEVENTH CAUSE OF ACTION 2 (Conversion) 166. Monster incorporates all other allegations in this complaint. 3 167. At all relevant times, Monster had and continues to have a property 4 interest in its contractual right to occupy shelf space in certain retail stores across the 5 country. 6 168. Without Monster’s consent, Defendants have intentionally and 7 substantially interfered with Monster’s property right. Defendants have unilaterally 8 taken possession of Monster’s shelf space, prevented Monster from accessing it, and 9 used it for their own product. 10 169. As a result of Defendants’ interference, Monster has suffered and will 11 suffer irreparable harm and monetary damages by, among things, (i) losing revenue 12 and profits, (ii) losing sales of its products, (iii) damage to its reputation and 13 goodwill, and (iv) damage to its relationships with retailers. 14 170. Defendants have acted with oppression, fraud, or malice, entitling 15 Monster to an award of punitive damages. 16 EIGHTH CAUSE OF ACTION 17 (Violation of California Penal Code Section 496) 18 171. Monster incorporates all other allegations in this complaint. 19 172. California Penal Code section 496 provides that “[e]very person who 20 . . . receives any property that has been stolen or that has been obtained in any 21 manner constituting theft or extortion, knowing the property to be so stolen or 22 obtained, or who conceals, . . . or aids in concealing . . . any property from the owner, 23 knowing the property to be so stolen or obtained,” is liable to the property owner for 24 “three times the amount of the actual damages, . . . cost of suit, and reasonable 25 attorney’s fees.” 26 173. At all relevant times, Monster had and continues to have property 27 interests in its contractual right to occupy shelf and cooler space in certain retail 28 stores across the country. - 43 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 174. As alleged herein, Defendants have knowingly stolen or taken 2 Monster’s property. Defendants have also concealed property from Monster that 3 they knew had been stolen from Monster. After stealing Monster’s property, 4 Defendants schemed to prevent Monster from learning of the theft by blaming store 5 managers. 6 175. Defendants have used Monster’s property for Defendants’ benefit. 7 Defendants did so with the intent to not only take away Monster’s contractual rights, 8 but also to divert Monster’s sales and goodwill to Defendants. 9 176. As a result, Monster has suffered and will suffer irreparable harm and 10 monetary damages by, among things, (i) losing revenue and profits, (ii) losing sales 11 of its products, (iii) damage to its reputation and goodwill, and (iv) damage to its 12 relationships with retailers. 13 177. Defendants acted with oppression, fraud, malice, and in conscious 14 disregard of Monster’s property rights. Monster is entitled to compensatory 15 damages, treble damages under Penal Code section 496(c), and punitive damages. 16 NINTH CAUSE OF ACTION 17 (False Patent Marking under 35 U.S.C § 292) 178. Monster incorporates all other allegations in this complaint. 18 179. 35 U.S.C. § 292(a) and (b) provide that “[w]hoever marks upon, or 19 affixes to, or uses in advertising in connection with any unpatented article, the word 20 ‘patent’ or any word or number importing that the same is patented, for the purpose 21 of deceiving the public” shall be liable to “[a] person who has suffered a competitive 22 injury as a result” for “damages adequate to compensate for the injury.” 23 180. Defendants have claimed and continue to claim that the “Super 24 Creatine” in BANG practices the ’466 patent, both by marking BANG cans with the 25 patent number and by referencing the patent in BANG-related advertising. 26 181. The claim that “Super Creatine” practices the ’466 patent is false: 27 “Super Creatine” is not “biologically active,” as required by the patent claims. 28 - 44 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 182. At all relevant times, Defendants have had no basis for claiming that 2 “Super Creatine” is “biologically active,” and instead made those claims for the 3 purpose of deceiving the public. 4 183. As a result of Defendants’ false claims, Monster has suffered and will 5 suffer competitive injury including: (i) lost revenue and profits, (ii) lost sales of its 6 products, and (iii) damage to its reputation and goodwill. 7 TENTH CAUSE OF ACTION 8 (Violation of the California Uniform Trade Secrets Act Under Cal. Civ. Code § 3426 et seq.) 9 184. Monster incorporates all other allegations in this complaint. 10 185. Monster’s has developed numerous valuable and protectable trade 11 secrets, including its confidential and proprietary pricing information and data. 12 186. These trade secrets, including but not limited to Monster’s confidential 13 and proprietary pricing information and data, derive independent economic value 14 from not being generally known to the public or to other persons who can obtain 15 value from their disclosure or use. 16 187. Monster undertakes reasonable efforts—such as the use of employee 17 confidentiality agreements and the implementation of security technology—to 18 maintain the secrecy of its trade secrets. 19 188. Monster permits use of these trade secrets only for authorized business 20 purposes by authorized employees. Any other use is not permitted. 21 189. Defendants willfully and intentionally misappropriated Monster’s trade 22 secrets by requiring former Monster employees to bring these trade secrets to VPX as 23 a precondition of employment. Moreover, Defendants misled these former Monster 24 employees by falsely assuring them that it was permissible to steal Monster’s trade 25 secrets 26 190. Upon information and belief, Defendants have used Monster’s trade 27 secrets to, among other things, improve their pricing analytics and supply-chain 28 strategies, thus causing Monster a competitive harm. - 45 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 191. Defendants have acted with oppression, fraud, or malice, entitling 2 Monster to an award of punitive damages. 3 ELEVENTH CAUSE OF ACTION 4 (Violation of the Defend Trade Secrets Act (“DTSA”) under 18 U.S.C. § 1836 et seq.) 5 192. Monster incorporates all other allegations in this complaint. 6 193. Monster has developed numerous valuable and protectable trade secrets, 7 including its confidential and proprietary pricing information and data. 8 194. These trade secrets, including but not limited to Monster’s confidential 9 and proprietary pricing information and data, derive independent economic value 10 from not being generally known to the public or to other persons who can obtain 11 value from their disclosure or use. 12 195. Monster undertakes reasonable efforts—such as the use of employee 13 confidentiality agreements and the implementation of security technology—to 14 maintain the secrecy of its trade secrets. 15 196. Monster permits use of these trade secrets only for authorized business 16 purposes by authorized employees. Any other use is not permitted. 17 197. Defendants willfully and intentionally misappropriated Monster’s trade 18 secrets by requiring former Monster employees to bring these trade secrets to VPX as 19 a precondition of employment. Moreover, Defendants misled these former Monster 20 employees by falsely assuring them that it was permissible to steal Monster’s trade 21 secrets 22 198. Upon information and belief, Defendants have used Monster’s trade 23 secrets to, among other things, improve their pricing analytics and supply-chain 24 strategies, thus causing Monster a competitive harm. 25 199. Defendants have acted with oppression, fraud, or malice, entitling 26 Monster to an award of punitive damages. 27 28 - 46 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 TWELFTH CAUSE OF ACTION 2 (Violation of the Computer Fraud and Abuse Act (“CFAA”) 18 U.S.C. § 1030 et seq.) 3 200. Monster incorporates all other allegations in this complaint. 4 201. Defendants, by and through their current employees, have intentionally 5 accessed and/or attempted to access Monster’s computers, which were used in or 6 affected interstate and/or foreign commerce or communication. Defendants did so 7 without Monster’s authorization and/or by exceeding any authorization as was 8 granted. 9 202. As a result of Defendants’ unauthorized access, they have furthered a 10 scheme to obtain Monster’s trade secrets and have in fact gained access to Monster’s 11 valuable trade secrets. 12 203. Defendants have gained—and Monster has lost—more than $5,000 in 13 value since the time of Defendants’ unauthorized access, which occurred within a 14 year of the filing of this complaint. 15 204. Defendants have acted with oppression, fraud, or malice, entitling 16 Monster to an award of punitive damages. 17 PRAYER FOR RELIEF 18 Monster requests the following relief: 19 1. A preliminary and permanent injunction barring Defendants from engaging 20 in the unlawful conduct described above; 21 2. Judgment in favor of Monster and against Defendants on all claims; 22 3. Compensatory and punitive damages to be proven at trial; 23 4. A declaration that this is an “exceptional case” due to the willful nature of 24 Defendants’ unlawful conduct, and awarding damages and attorneys’ fees 25 and costs to Monster pursuant to 15 U.S.C. § 1117, and any other damages 26 including treble damages and attorneys’ fees to the full extent allowable 27 under the law; 28 5. Treble damages, costs of suit, and attorneys’ fees pursuant to California - 47 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

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1 Penal Code section 496(c); 2 6. An injunction of both actual and threatened misappropriation of Monster’s 3 trade secrets pursuant to California Civil Code § 3426.2(a). 4 7. Reasonable costs and expenses incurred in this action, including attorneys’ 5 fees and costs of the suit, to the full extent permitted by law; 6 8. Pre-judgment interest on all such damages, monetary, or otherwise; and 7 9. All other relief, legal or injunctive, as this Court finds appropriate. 8 JURY DEMAND 9 Monster demands a trial by jury on all claims for which trial by jury is proper. 10 11 Dated: April 3, 2019 Respectfully submitted, 12 HUESTON HENNIGAN LLP 13 14 By: V-RKQ&+XHVWRQ 15 John C. Hueston Moez M. Kaba 16 Steven N. Feldman Attorneys for Plaintiff 17 MONSTER ENERGY COMPANY, a Delaware Corporation 18 19 20 21 22 23 24 25 26 27 28 -48 - PLAINTIFF MONSTER ENERGY COMPANY’S FIRST AMENDED COMPLAINT

5521379

EXHIBIT “2” Case 5:18-cv-01882-JGB-SHK Document 122 Filed 06/17/19 Page 1 of 11 Page ID #:3242

EXHIBIT "2"

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL

Case No. EDCV 18-1882 JGB (SHKx) Date June 17, 2019 Title Monster Energy Company v. Vital Pharmaceuticals, Inc. et al.

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Not Reported Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s): None Present None Present

Proceedings: Order (1) DENYING Plaintiff’s Motion for Preliminary Injunction (Dkt. No. 67) and (2) GRANTING Plaintiff’s Motion for Leave to File Documents Under Seal (Dkt. No. 70) (IN CHAMBERS)

Before the Court is Plaintiff Monster Energy Company’s (“Monster”) motion for preliminary injunction, (“Motion,” Dkt. No. 67), and motion for leave to file documents under seal, (Dkt. No. 70). The Court heard oral argument on Plaintiff’s motions on June 17, 2019. After considering the parties arguments and written submissions, the Court DENIES Plaintiff’s motion for preliminary injunction and GRANTS Plaintiff’s motion for leave to file documents under seal.

I. BACKGROUND

Plaintiff filed a complaint on September 4, 2018, (Dkt. No. 1), and a First Amended Complaint on April 3, 2019, (“FAC,” Dkt. No. 61.) The FAC alleges causes of action for (1) violation of the Lanham Act; (2) unfair competition; (3) false advertising; (4) trade libel; (5) intentional interference with contractual relations; (6) intentional interference with prospective economic advantage; (7) conversion; (8) larceny; (9) false patent marking; (10) violation of the California Uniform Trade Secrets Act; (11) violation of the Defend Trade Secrets Act; and (12) violation of the Computer Fraud and Abuse Act.

On April 17, 2019, Defendant John H. Owoc filed a motion to dismiss all claims against him for lack of personal jurisdiction, (Dkt. No. 79), and Defendants Vita Pharmaceuticals, Inc. (“VPX”) and Owoc jointly moved to dismiss the FAC for failure to state claim, (Dkt. No. 81), and to strike portions of the FAC, (Dkt. No. 80). On May 20, 2019, the Court ruled on these

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motions, denying Owoc’s motion to dismiss for lack of personal jurisdiction, denying Defendants’ motion to strike portions of the FAC, and granting in part and denying in part Defendants’ motion to dismiss for failure to state claim. (“MTD Order,” Dkt. No. 95.) The Court dismissed Plaintiff’s cause of action for trade libel with leave to amend and dismissed Plaintiff’s causes of action for conversion, larceny, and false patent marketing without leave to amend. (Id.)

Plaintiff filed this Motion on April 10, 2019. (Dkt. No. 67.) Defendants filed their opposition to the Motion on May 24, 2019. (“Opposition,” Dkt. No. 97.) Plaintiff submitted its reply on June 3, 2019.

II. LEGAL STANDARD

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690 (2008) (citations omitted). Where the balance of hardships tips sharply in the plaintiff's favor and the plaintiff has demonstrated a likelihood of irreparable harm, however, the plaintiff need only show that “serious questions” exist as to success on the merits. See Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

Under the Ninth Circuit's “sliding scale” approach to preliminary injunctions, the four “elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Thus, “a preliminary injunction could issue where the likelihood of success is such that serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor.’” Id. at 1131–32 (internal quotation omitted). Put differently, “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements [likelihood of irreparable injury and public interest] of the Winter test are also met.” Id. at 1132.

III. DISCUSSION

A. Evidentiary Issues

1. Plaintiff’s Motion to Seal

On April 11, 2019, Plaintiff filed a motion for leave to file portions of its exhibits in support of its motion for a preliminary injunction under seal and for those portions to be maintained for outside attorneys’ eyes only. (Dkt. No. 70.) Defendants opposed this motion on April 15, 2019. (Dkt. No. 74.) On April 18, 2019, the Court granted Plaintiff’s ex parte

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application for a temporary protective order prohibiting the disclosure to VPX’s in-house counsel of documents subject to its sealing motion pending a ruling on its sealing motion. (Dkt. No. 84.)

There is a strong presumption of public access to judicial records and documents. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 n. 7 (1978) (“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.”); Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677 (9th Cir. 2010). The presumption applies to pleadings filed with the court and extends to discovery material attached to those pleadings. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). Although a request to seal judicial records offends the presumption in favor of public access, the right of access “is not absolute.” Id. at 1135. A party seeking to file documents under seal must articulate compelling reasons supported by specific factual findings that “outweigh the general history of access and the public policies favoring disclosure . . . .” Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006).

Plaintiff seeks to seal information falling into two categories: (1) non-public financial information of Monster and third-parties and (2) non-public strategic and business-making information of Monster and third-parties. Courts routinely grant motions to seal information in cases where a court record might be used for “improper purposes such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3dat 1179 (internal quotations omitted). Even where records do not include trade secrets, they may still be sealed where they could be a “source[] of business information that might harm a litigant’s competitive standing.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016). Courts also routinely find that non-public financial, pricing, and strategy information could harm litigants’ competitive standing and grant motions to seal such information. See Rodman v. Safeway Inc., 2015 WL 13673842, at *2 (N.D. Cal. Aug. 4, 2015) (granting “narrowly tailored” request to seal nonpublic information discussing pricing strategy, business decision-making, customer research, and financial records); SteppeChange LLC v. VEON Ltd., 354 F. Supp. 3d 1033, 1045 (N.D. Cal. 2018) (granting motion to seal documents containing nonpublic pricing terms). In such circumstances, district courts have “broad latitude to grant protective orders to prevent disclosure of materials for many types of information, including, but not limited to, trade secrets or other confidential research, development, or commercial information.” Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002). The Court finds that Plaintiff has presented compelling reasons to seal the redacted portions of these documents.

Plaintiff also seeks an order prohibiting the disclosure of the sealed information to anyone other than Defendants’ outside counsel. The Court previously granted Plaintiff’s ex parte application for a temporary restraining order seeking the same relief pending a ruling on this motion to seal. (Dkt. No. 84.) In that order, the Court found that such protection was warranted given allegations that Defendants have previously attempted to steal Monster’s proprietary information, including confidential pricing data. (Id. at 1.) Defendants have not brought to the Court’s attention any changed circumstances which would warrant lifting this protective order. In light of the fact that Plaintiff and VPX are direct competitors and that Plaintiff has made plausible allegations that Defendants attempted to steal its confidential pricing data, sharing

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these documents with in-house counsel would pose an unnecessarily high risk of inappropriate disclosure of these documents. See Intel Corp. v. VIA Techs., Inc., 198 F.R.D. 525, 529 (N.D. Cal. 2000); U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed. Cir. 1984). Further, while Defendants previously took the position that without disclosure they would be unable to effectively oppose Plaintiff’s motion for a preliminary injunction, upon review of Defendants’ briefing and evidence in opposition to Plaintiff’s Motion the Court sees no evidence that Defendants’ ability to defend themselves in this case has been impeded. The therefore Court finds that maintaining this protective order in place is warranted.

Plaintiff’s motion for leave to file portions of its exhibits in support of its motion for a preliminary injunction under seal and for those portions to be maintained for outside attorneys’ eyes only is GRANTED.

2. Evidentiary Objections

Both parties have raised numerous evidentiary objections to documents and declarations submitted in support of, and in opposition to, Plaintiff’s Motion. Defendants submitted objections to evidence submitted by Monster in support of its motion on May 24, 2019. (“Defendants’ Objection,” Dkt. No. 102.) Plaintiff responded to these objections on June 3, 2019. (Dkt. No. 107.) Plaintiff then filed its own objections to evidence submitted in support of Defendants’ opposition on June 3, 2019. (Dkt. No. 108.)

Preliminary injunctions are customarily decided “on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” QBAS Co. v. C Walters Intercoastal Corp., 2010 WL 7785955, at *4 (C.D. Cal. Dec. 16, 2010) (internal quotations and citations omitted). In deciding whether to grant a preliminary injunction, the Court “may give even inadmissible evidence some weight,” Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984), and, in its discretion, accord the appropriate weight to that evidence, Signeo USA, LLC v. SOL Republic, Inc., 2012 WL 2050412, at *3 (N.D. Cal. June 6, 2012). The Court has considered the likely admissibility of challenged evidence in determining whether Plaintiff demonstrated a likelihood of success on the merits but need not rule individually on each of the parties’ objections. Where the Court has expressly relied on evidence subject to an objection, the Court has OVERRULED that objection. See Disney Enterprises, Inc. v. VidAngel, Inc., 224 F. Supp. 3d 957, 966 (C.D. Cal. 2016), aff'd, 869 F.3d 848 (9th Cir. 2017)

B. Motion for Preliminary Injunction

Monster seeks a preliminary injunction enjoining (1) VPX’s use of the terms “creatine” and “Super Creatine” to sell BANG energy drinks and (2) VPX’s intentional interference with Monster’s shelving-space contracts with its retail partners. Because the Court is not satisfied the evidence presented establishes that Plaintiff is likely to succeed on the merits of either of these claims, Plaintiff’s Motion will be denied.

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1. Likelihood of Success on the Merits

Monster argues that it is likely to succeed on the merits of its claims for false advertising, under Section 43(a) of the Lanham Act, and intentional interference with contractual relations. The Court will consider these claims in turn. Likelihood of success on the merits is “the most important” factor in determining whether to issue a preliminary injunction. Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (citing Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)).

a. False Advertising

The elements of a Lanham Act 43(a) false advertising claim are: (1) a false statement of fact about a product in a commercial advertisement; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material; (4) the defendant caused the statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997); Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1052 (9th Cir. 2008). Because Plaintiff has failed to demonstrate a likelihood of success on the merits of the first element of this claim, the Court addresses only that factor.

To demonstrate that a statement was false within the meaning of the Lanham Act, a plaintiff must show either that the statement was literally false or that the statement was literally true but likely to mislead or confuse consumers. Southland Sod Farms, 108 F.3d at 1139. Monster claims that Defendants’ use of the term “creatine” on the labels of its energy drink products is literally false, because BANG does not contain creatine, and that its use of the term “Super Creatine” is impliedly false because it suggests that BANG contains creatine when it actually contains an entirely different molecule, creatyl-L-leucine.

Plaintiff first argues that BANG’s labels contains claims which are literally false because, while the label claims that BANG contains a “potent body-rocking fuel” consisting of “Creatine, Caffeine, CoQ10, & BCAAs,” (manually filed cans of BANG energy drink (“BANG Cans”), Dkt. No. 72), BANG does not contain actual creatine. In support of this argument, Plaintiff has submitted the declaration of Dr. Neil Spingarn, an analytical chemist and the president of S & N Labs. (Declaration of Dr. Neil Spingarn, Dkt. No. 67-3.) S & N Labs was retained by Plaintiff to test BANG energy drink for the presence of the chemicals creatine, creatinine, creatyl-L-leucine, branched-chain amino acids (“BCAAs”), and CoQ10. (Id. ¶ 5.) Spingarn tested four cans of “Root Beer Blaze” flavored BANG, one can of “Blue Razz” BANG, and one can of “Lemon Drop” BANG. Creatine was not detected, or detected in only trace amounts, in any of the tested products. (Spingarn Decl. Exh. 2.) Additionally, Plaintiff points to Owoc’s public statements admitting that his product does not contain “regular creatine.” (“Declaration of Steven N. Feldman,” Exhibit 1, Dkt. No. 69-1.)

Plaintiff next argues that VPX’s use of the term “Super Creatine” is impliedly false because it suggests that BANG contains creatine, when in fact it contains only creatyl-L-leucine, a different molecule. Dr. Spingarn’s declaration states that creatyl-L-leucine – what Defendants

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market as “Super Creatine” – is a “chemically synthesized compound” which is created from the linking of two distinct amino acids, creatine and leucine. (Spingarn Decl. ¶ 13.) Spingarn states that the properties of combined drugs such as creatyl-L-leucine are “distinct from [those of] the constituent amino acids.” (Id.)

It appears, however, that Monster’s claims rely on an overly narrow understanding of the word “creatine,” since, as discussed in their own evidentiary submissions, “[m]any forms of creatine exist in the marketplace,” including formulations combining creatine with other amino acids. Thomas W. Buford, et al., International Society of Sports Nutrition position stand: creatine supplementation and exercise, J. Int. Soc. Sports. Nutr., Aug. 2007; see also Robert Cooper, et al., Creatine supplementation with specific view to exercise/sports performance: an update, J. Int. Soc. Sports. Nutr., July 2012. The parties agree that “Super Creatine” is a dipeptide – a chemical composed of two amino acids – which consists of the amino acids creatine and L-leucine. (“Declaration of Dr. Liangxi Li,” Dkt. No. 100 ¶ 24; Spingarn Decl. ¶ 13.) Defendants have submitted the declaration of Dr. Liangxi Li, Research & Development Manager at VPX, which details the many forms of creatine compound which are available on the market, many of which consist of creatine bonded with other molecules, and describes the process of developing Super Creatine by joining creatine to other amino acids. (“Declaration of Dr. Liangxi Li,” Dkt. No. 100 ¶¶ 13-16, 21.) Li states that the purpose of joining the creatine and L-leucine amino acids was to create a form of creatine which is “more stable and more bioavailable than other forms of creatine.” (Li Decl. ¶ 35.)

While Monster argues that creatyl-L-leucine does not provide any of the benefits of creatine, the evidence they have submitted in support of this claim supports only the more general conclusion that the chemical and physical properties of a new substance formed from the combination of two amino acids differs from their constituent parts. Scientific journal articles submitted by Monster agree that many forms of creatine exist and are available for consumer purchase as nutritional supplements. Neither the Buford nor the Cooper articles discuss creatyl- L-leucine, but both state that at least some of common creatine compounds provide similar or superior effects to those provided by creatine alone. Other than this, Plaintiff’s briefing points to no evidence demonstrating that creatyl-L-leucine does not provide the benefits of creatine. Monster’s argument that the combination of creatine and L-leucine “does not prove that someone who ingests creatyl-L-leucine receives creatine or the benefits of creatine,” (Reply at 4), simply flips the burden of proof: in order to prevail, Monster must demonstrate that Super Creatine does not provide the benefits of creatine. They have not yet done this to the Court’s satisfaction.

Monster also argues that even if Super Creatine and creatine are substantially the same molecule, BANG does not contain enough Super Creatine to provide the benefits that VPX promises consumers. But Plaintiff’s conclusion as to the amount of Super Creatine in BANG products is based on tests conducted in a single lab of only four cans of a single flavor of BANG purchased from the same retail store in Southern California. (Spingarn Decl. Exh. 2.) Plaintiff has pointed to no evidence that such an obviously limited sampling is sufficient for the Court to conclude that the quantities of Super Creatine detected in these tests – approximately 34

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milligrams per can – are representative of BANG products generally. Without more conclusive evidence that BANG cans generally lack sufficient quantities of Super Creatine to have any health or performance benefits, Monster cannot demonstrate that it is likely to succeed on the merits of its implied falsity claim. Nor has Monster submitted evidence that that other ingredients touted by BANG – including caffeine, CoQ10, and BCAAs – are not present in sufficient quantities to have some performance benefits. The Court will not order a nationwide recall on the basis of such a limited sample size.

Because Plaintiff has not demonstrated that it is likely to succeed on its claim that BANG either does not contain creatine or does not contain enough creatine to have any performance benefit, the Court need not address the other elements of their false advertising claim. A theory of recovery based on a claim of implied falsehood requires plaintiff to “demonstrate, by extrinsic evidence, that the challenged [advertisements] tend to mislead or confuse consumers.” Mut. Pharm. Co. v. Ivax Pharm., Inc., 459 F. Supp. 2d 925, 933 (C.D. Cal. 2006). Absent more adequate evidence that BANG does not, in fact, contain sufficient Super Creatine to have the effects which Defendants claims, Plaintiff cannot demonstrate that their claims are misleading. The Court therefore finds that Plaintiff has failed to establish a likelihood of success on the merits of its Lanham Act false advertising claim.

Likelihood of success on the merits is “the most important” factor in determining whether to issue a preliminary injunction. Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (citing Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)). If the moving party fails to meet this showing, then “the court need not consider the other factors … in the absence of serious questions going to the merits.” (Id.) (internal citations omitted.) The Court therefore need proceed no further and DENIES Monster’s motion for a preliminary injunction enjoining Defendants from using the term “creatine” or “Super Creatine” to market, sell, advertise, or promote BANG.

b. Intentional Interference with Contractual Relations

The elements of the tort of intentional interference with contract are: “(1) a valid contract between plaintiff and another party, (2) defendant's knowledge of the contract, (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship, (4) actual breach or disruption of the contractual relationship, and (5) resulting damage.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 505 (1994).

Monster has demonstrated that it has valid contracts for specific amounts of in-store shelf and/or cooler space with retailers across the country, including: AM PM (agreement to provide Monster with at least six shelves of cooler space in Southern California and at least four shelves of cooler space in Northern California) (Feldman Decl. Exh. 36); American Gas & Oil (agreement to merchandize Monster energy products on, at minimum, four shelves and that Monster would have “45% of predominant energy section”) (Feldman Decl. Exh. 35); Circle K (agreement to allocate shelf space to Monster based on combination of “customer internal scan data” and “fair market share” calculation, as well as to place Monster in “first position on top shelves above closest market share competitor” in markets where Monster is market share

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leader) (Feldman Decl. Exh. 47; Walmart (agreement that Monster products be placed on one side of “Tobacco Checklane Coolers” that it shares with Red Bull) (Feldman Decl. Exh. 49); Dunne Manning (agreement to merchandise all Monster energy products on four shelves of “predominant energy section”) (Feldman Decl. Exh. 50); Duchess (agreement to merchandise Monster energy products on four shelves of “predominant energy section”) (Feldman Decl. Exh. 51); Big Red (agreement to merchandise Monster energy products at no less than “50% of the total energy space”) (Feldman Decl. Exh. 53); and Pit Stop (agreement to merchandize Monster energy products on three shelves of “predominant energy section in cold vault”) (Feldman Decl. Exh. 55).

Monster has also submitted direct and circumstantial evidence that VPX engaged in conduct which disrupted these agreements. In numerous declarations, Monster employees describe repeated instances in which they have found BANG products in Monster’s contracted- for retail shelving space in retail locations across the country governed by each of the above retail shelving agreements. (Declaration of Steve Landry, Dkt. No. 67-31; Declaration of Gerardo Rico, Dkt. No. 67-18; Declaration of Meghan Higbie, Dkt. No. 67-26; Declaration of William Charles Hamby III, Dkt. No. 67-15; Declaration of Charley Boyum, Dkt. No. 67-14; Declaration of Lauren Milliano, Dkt. No. 67-23; Declaration of Matthew Boccia, Dkt. No. 67- 25; Declaration of Bob Samela, Dkt. No. 67-12; Declaration of James O’Brien, Dkt. No. 67-20; Declaration of Aaron Cheney, Dkt. No. 67-9; Declaration of Nathan Nielsen, Dkt. No. 67-28.) Defendants’ attempt to minimize this allegation as a “quibble[]” over “wayward cans on the wrong shelf in this-or-that store” is belied by the scope and duration of this phenomenon which, as discussed below, hardly appears accidental in light of the documented statements of VPX’s management and executive leadership. (Opp. at 7.)

Monster also submitted the declaration of Richard Laitinen, who worked as an account manager for VPX in California from November 2016 to September 2017 and again from April 2018 to November 2018. (Declaration of Richard Laitinen, Dkt. No. 67-7 ¶ 1.) Laitinen states that VPX district and regional managers directed him to use “guerilla tactics” and “be aggressive” in order to obtain shelf and cooler space for BANG at retail stores. (Id.) They made specific demands about the location in which BANG should be placed – at eye level in the energy drink doors – and instructed Laitinen to document the space he acquired with photographs. (Id. ¶¶ 4-6.) Laitinen understood their instructions to mean that he should take premier shelf and cooler space from competitors, including Monster, and that at the time he received these instructions he was aware that retailers had contracts and arrangements with competitor companies governing the allocation of space in shelves and coolers. (Id. ¶ 7.) In exchange for his role in placing BANG in retail stores, Laitinen received a “large commission”. (Id. ¶ 8.)

In addition to the Laitinen declaration, Monster introduced additional evidence showing that it is likely to prevail on its claim that Defendants knew of and intended to interfere with its shelving-space contracts: first, declarations from Emelie Tirre, President of the Americas for Monster, and other Monster management which state, in part, that it is industry custom that product placement is the subject of contract between retailers and beverage companies and that these contracted-for shelving arrangements are recorded in “planograms” which are circulated to beverage manufacturers and, in some cases, placed inside beverage coolers themselves. (“Declaration of Emelie Tirre,” Dkt. No. 67-6 ¶¶ 7, 9; Nielsen Decl. ¶ 2.) Second, Instagram

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posts made by Owoc, including one which shows an image of a VPX products placed in front of Monster products accompanied by the text “When in doubt block them out. In life when they tell you there’s no shelf space – make your own shelf space! When multibillion-dollar competitors pay for space retaliate with a vengeance,” and another which states that VPX will “not placate to [a retailer’s] tomfoolery and rigged system of paying for shelf space.” (Feldman Decl. Exhs. 6, 37.)

Defendants argue that Monster has failed to show that VPX or its agents had knowledge of the existence of the specific shelving-space contracts between Monster and its retailers with which they interfered. Their argument, however, ignores both the numerous declarations submitted by Plaintiff stating that distributors and representatives of beverage companies are aware of the existence of contracted for shelving space and that such space is highly sought after, (Dkt. Nos. 67-7 – 67-34), as well as the public statements made by Owoc which object to the industry practice of paying for shelf space and state his intention to “make [his] own shelf space” and “retaliate” against competitors who pay for space. (Feldman Decl. Exhs. 6, 37.)

Defendants offer some authority for the proposition that the knowledge element of the tort of intentional interference with contract requires that defendant have knowledge of the specific contract with which it is interfering. See Davis v. Nadrich, 174 Cal. App. 4th 1, 10–11, (2009), as modified (May 21, 2009) (affirming grant of summary judgment to defendant where plaintiff had failed to show that defendant was sufficiently aware of the details of the employment contract to form an intent to interfere with it); Swipe & Bite, Inc. v. Chow, 147 F. Supp. 3d 924, 934–35 (N.D. Cal. 2015) (dismissing complaint for failure to allege facts showing that defendant had knowledge of agreements with specific customers); GSI Tech. v. United Memories, Inc., 2014 WL 1572358, at *7 (N.D. Cal. Apr. 18, 2014) (allegations that non- compete clause was common industry practice, without more, was insufficient to plausibly plead knowledge of contractual relations). But they interpret the knowledge requirement too narrowly. As Owoc’s public statements and the Laitinen declaration make clear, VPX’s management was fully aware that Monster and other energy drink manufacturers contracted for specific shelving space in retail stores across the country. In many of these stores, planograms were available which specifically describe the locations of this contracted for space, which would have placed their distributers on notice as to the terms of these shelving agreements. (Tirre Decl ¶¶ 7,9; Nielsen Decl. ¶ 2.) While some questions remain as to the specificity of Defendants’ knowledge of each specific agreement in question, some evidence suggests that Defendants engaged in an ongoing, nationwide practice of placing their products on contracted-for shelving space while knowing that such agreements existed. In light of the extent of this practice, Plaintiff need not demonstrate specific knowledge of each contract in question in order to demonstrate a likelihood of success on the merits.

For the same reasons, the Court finds that Plaintiff has demonstrated a high likelihood of showing that Defendants’ interference was intentional. Plaintiff need not show specific intent to interfere with its contract, only that Defendants knew that interference was “certain or substantially certain to occur as a result of its action.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 63 P.3d 937 (2003); Winchester Mystery House, LLC v. Glob. Asylum, Inc., 210 Cal. App. 4th 579, 596 (2012). Owoc’s public statements and Laitinen’s declaration regarding VPX’s internal practice of directing distributors to place BANG products in competitors’ contracted-for shelving space both show that the numerous documented instances

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of “wayward” BANG cans in Monster’s shelving space were likely the result of Defendants’ intentional conduct.

Plaintiff has, however, submitted very little evidence that the above conduct resulted in damages. Indeed, the only evidence connecting Defendants’ interference with shelving-space contracts are two conclusory statements by the President of the Americas for Monster. While it may be the case that BANG’s sales growth has been “fueled by VPX’s theft of Monster’s shelf and cooler space,” (Tirre Decl. ¶ 24), it is unclear how Tirre is qualified to make this assessment or what information this conclusion is based on, and Plaintiff has submitted no empirical evidence in support of this claim. In particular, the Court can find no evidence connecting the interference with Monster’s shelving-space contracts to the loss of customer goodwill, the loss of market share, or the loss of profits. Without such evidence, or a basis for his conclusion, Tirre’s statements that a customer entering a retail store would be “more likely to find BANG and less likely to believe that Monster is proven and popular” are purely speculative. (Tirre Decl. ¶ 24.) At this preliminary stage, the Court cannot determine whether it is likely that Plaintiff is likely to successfully demonstrate this element of its intentional interference with contractual relations claim.

2. Irreparable Harm

Even if Plaintiff had demonstrated a likelihood of successfully demonstrating damages resulting from Defendants’ interference in its shelving-space contracts, the Court is not convinced that it has adequately shown a likelihood of irreparable harm. A party seeking injunctive relief must show “evidence of likely irreparable harm,” not merely “unsupported and conclusory statements regarding the harm [the plaintiff] might suffer.” Pom Wonderful LLC v. Pur Beverages LLC, 2015 WL 10433693, at *5 (C.D. Cal. Aug. 6, 2015) (internal quotations and emphasis omitted); see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (plaintiffs seeking preliminary relief must “demonstrate that irreparable injury is likely in the absence of an injunction); Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 982 (9th Cir. 2011) (affirming denial of motion for preliminary injunction where plaintiff had failed to submit statements showing customers had abandoned their company because of the challenged conduct). But the Court can locate no evidence in showing that Monster has lost or will lose any business, market share, or customer goodwill to VPX due to interference with its shelving space contracts. Even assuming that Monster has demonstrated a loss in market share or customer goodwill, the Court does not have any evidence before it connecting these downturns to Defendants’ conduct. The Court therefore concludes that Plaintiff has failed to demonstrate that it is likely to suffer irreparable harm absent a permanent injunction.

3. Balance of Equities and the Public Interest

If the moving party fails to show a likelihood of success on the merits, then “the court need not consider the other factors … in the absence of serious questions going to the merits.” Disney Enterprises, Inc., 869 F.3d at 856 (internal citations omitted.) Because Plaintiff has not shown either a likelihood of success on the merits or that it is likely to suffer irreparable harm absent an injunction, the Court need not weigh either the potential harms caused by a preliminary

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injunction or whether a preliminary injunction would be in the public interest. See Disney Enterprises, Inc., 869 F.3d at 856.

IV. CONCLUSION

Based on the foregoing, the Court DENIES Plaintiff’s Motion for Preliminary Injunction. Plaintiff’s motion to file document in support of this Motion under seal is GRANTED.

IT IS SO ORDERED.

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