Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA309718
`ESTTA Tracking number:
`10/05/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91191668
`Defendant
`Vital Pharmaceuticals, Inc.
`Kalina Pagano
`Vital Pharmaceuticals, Inc.
`15751 SW 41st Street, #300
`Davie, FL 33331
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`kpagano@vpxsports.com
`Motion to Suspend for Civil Action
`Kalina Pagano
`kpagano@vpxsports.com
`/kp/
`10/05/2009
`Motion to Suspend Proceeding 91191668.pdf ( 23 pages )(3237709 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`INNOVATIVE VENTURES, LLC
`
`Opposer
`
`Applicant
`
`VITAL PHARMACEUTICALS, INC.
`
`11/
`
`Opposition No. 91191668
`Serial No. 77495541
`
`MOTION TO SUSPEND PROCEEDINGS PENDING OUTCOME OF OPPOSER’S CIVIL ACTION
`
`Pursuant
`
`to 37 CFR §2.l17(a} and TBMP §510.02(a), VITAL PHARMACEUTICALS,
`
`INC.
`
`(hereinafter “VPX”), hereby moves the Trademark Trial and Appeal Board to suspend this opposition
`
`proceeding, pending the outcome of the civil action: Hansen Beverage Company v. innovative Ventures,
`
`l..L.C. o‘/b/o Living Essentials, Case No. O8-CV-01166 (IEG) in the U.S. District Court, Southern District of
`
`California, Sacramento Division, filed on July 1, 2008 (hereinafter "5 Hour California Action") and states
`
`as follows:
`
`On or about June 10, 2008, VPX filed an intent—to~use trademark application for "nutritional
`
`supplements; nutritionally fortified beverages” in International Class 5. The United States Patent and
`
`Trademark Office (hereinafter "USPTO") subsequently assigned Serial Number 77/495, 541 and the mark
`
`was noticed for publication on April 28,2009.
`
`Opposer, INNOVATIVE VENTURES, LLC (hereinafter " IVLLC”) was granted an extension, up to
`
`and including August 26, 2009, in which to oppose VPX’s "7 Hour Down” mark (Serial Number 77/495.
`
`541), based upon the April 28, 2008 Notice Of Publication.
`
`VPX’s Answer to the Opposition is due October 5, 2009. However, VPX contends that the
`
`opposition proceeding should be suspended, based upon the allegations set forth in the Complaint for
`
`

`
`the 5 Hour California Action. A copy of the complaint in the 5 Hour California Action is attached hereto
`
`as Exhibit "A."
`
`VPX contends further that the disposition of the 5 Hour California Action will have a bearing on
`
`the validity of the 5 Hour Mark, as it pertains to this instant proceeding. As such, VPX prays that the
`
`Board would enters an order granting the relief sought in this motion, suspending this proceeding, and
`
`any further relief deemed proper.
`
`In addition, VPX hereby moves the Board for preservation of
`
`its rights, to file and serve its
`
`Answer to the Opposition, if this instant Motion is denied.
`
`Date: October 5, 2008
`(Filed electronically via USPTO.ES'lTA)
`
`Respectfully submitted,
`
`
`
`Kalina Pagano, Esquire
`
`Attorney for Applicant
`Vital Pharmaceuticals, Inc.
`15757 sw 41“ Street, #300
`Davie, FL 33331
`
`Telephone: 954—641~0570 ext 293
`Fax: 954-641-0583
`
`Email: l<pagano@vpxsports.com
`
`

`
`CERTIFICATE OF SERVICE
`
`I certify that I served:
`
`MOTION TO SUSPEND PROCEEDINGS PENDING OUTCOME OF OPPOSER’5 CIVIL ACTION
`
`on October 5, 2008 by:
`
`__
`
`delivering
`
`_x_
`
`mailing (via first class mail)
`
`3:
`
`email
`
`A copy to:
`
`Anessa Kramer
`
`Brooks Kushman
`
`1000 Town Center, Suite 2200
`Southfield, MI 48075
`
`Telephone: 248-358-4400
`Email: a|<ramer@hrookskushman.com
`
`
`
`Kalina Pagano, Esquire
`
`

`
`EXHIBIT "A”
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`INNOVATIVE VENTU RES, LLC
`
`Opposer
`
`Applicant
`
`VITAL PHARMACEUTICALS, INC.
`
`1:]
`
`Opposition No. 91191658
`Serial No. 77495541
`
`MOTION TO SUSPEND PROCEEDINGS PENDING OUTCOME OF OPPOSEIT5 CIVIL ACTION
`
`Pursuant
`
`to 37 CFR §2.117(a) and TBMP §510.02(a), VITAL PHARMACEUTICALS,
`
`INC.
`
`(hereinafter "VP)("), hereby moves the Trademark Trial and Appeal Board to suspend this opposition
`
`proceeding, pending the outcome of the civil action: Hansen Beverage Company v. innovative Ventures,
`
`LLC. cl/b/o Living Essentials, Case No. 08-CV-01165 (H36) in the U.S. District Court, Southern District of
`
`California, Sacramento Division, filed on July 1, 2008 (hereinafter "5 Hour California Action”) and states
`
`as follows:
`
`On or about June 10, 2008, VPX filed an intent-to-use trademark application for “nutritional
`
`supplements; nutritionally fortified beverages" in International Class 5. The United States Patent and
`
`Trademark Office (hereinafter "USPTO") subsequentiy assigned Serial Number 77/495, 541 and the mark
`
`was noticed for publication on April 28, 2009.
`
`Opposer, INNOVATIVE VENTURES, LLC (hereinafter " IVLLC”) was granted an extension, up to
`
`and including August 26, 2009, in which to oppose VP)(’s "7 Hour Down" mark (Serial Number 77/495,
`
`541), based upon the April 28, 2008 Notice Of Publication.
`
`VP)<’s Answer to the Opposition is due October 5, 2009. However, VPX contends that the
`
`opposition proceeding should be suspended, based upon the allegations set forth in the Complaint for
`
`

`
`the 5 Hour California Action. A copy of the complaint in the 5 Hour California Action is attached hereto
`
`as Exhibit "A."
`
`VPX contends further that the disposition of the 5 Hour California Action will have a bearing on
`
`the validity of the 5 Hour Mark, as it pertains to this instant proceeding. As such, VPX prays that the
`
`Board would enters an order granting the relief sought in this motion, suspending this proceeding, and
`
`any further relief deemed proper.
`
`In addition, VPX hereby moves the Board for preservation of
`
`its rights, to file and serve its
`
`Answer to the Opposition, if this instant Motion is denied.
`
`Date: October 5, 2008
`(Filed electronically via USPTO.ES'|‘|'A)
`
`Respectfully submitted,
`
` Kalina Pagano, Esqui
`
`Attorney for Applican
`Vital Pharmaceuticals, Inc.
`15757 sw 41“ Street, #300
`Davie, FL 33331
`
`Telephone: 954-641-0570 ext 293
`Fax: 954-641-0583
`
`Email: kpagano@vpxsports.com
`
`

`
`CERTIFICATE OF S£RV|CE
`
`I certify that I served:
`
`MOTION TO SUSPEND PROCEEDINGS PENDING OUTCOME or OPPOSER’S CIVIL ACTION
`
`on October 5, 2008 by:
`
`_,
`
`delivering
`
`_:I<_
`
`mailing (via first ciass mail)
`
`x
`
`email
`
`A copy to:
`
`Anessa Kramer
`
`Brooks Kushman
`
`1000 Town Center, Suite 2200
`Southfield. MI 48075
`
`Telephone: 248-358-4400
`Email: akramer@brooks|<ushman.com
`
`
`
` QB.
`
`Kalina Pagano, E
`
`uire
`
`

`
`EXHIBIT "'A”
`
`

`
`'
`_
`
`-
`08 Jul
`-
`-
`--
`--
`
`=-ll
`,r.
`I A1110:
`
`1
`
`I
`
`1..
`
`fcL
`
`DE.4LJry
`
`--
`
`*"
`
`By:
`
`1
`
`2
`
`NORMAN L. SMITH [SBN 106344]
`nsmith@swss|aw.com
`EDWARD J. MCINTYRE [SBN 30402]
`emcintyre@sw55law.com
`3 ALISON L. PIVONKA [SBN 156977]
`apivc-nka@swsslaw.com
`
`SOLOMON WARD SEIDENWURM 3. SMITH, up
`401 B Street, Suite 1200
`San Diego, California 92101
`Telephone: (619) 231-0303
`Facsimile: (619) 231-4755
`
`Attorneys for HANSEN BEVERAGE COMPANY
`
`4
`5
`
`6 7 8 9
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT
`
`CALIFORNIA
`
`'
`
`/
`
`V
`
`11
`
`HANSEN BEVERAGE COMPANY, a
`
`12 Delaware corporatiqn,
`
`CASE NO.,08
`
`1 1
`
`13
`
`14
`
`15
`
`15
`
`17
`
`Plaintiff,
`
`V.
`
`COFPLAINT FOR FALSE ADVERTISING
`
`IN IOLATION or THE LANHAM ACT,
`CA IFORNIA BUSINESS 8: PROFESSIONS
`CODE §§ 17200 AND 17500 AND TRADE
`LIBEI.
`
`INNOVAT1ON VENTURES, LLC dba
`LIVING ESSENTIALS, a Michigan
`corporation,
`
`AND
`
`Defendant.
`
`IURY TRlAL DEMAND
`
`CR
`
`P:U042EIfJB5.1D:0?565 I 51'
`
`COMPLAINT
`
`

`
`PREAMBLE
`
`This case involves a seller of energy drinks who, instead of allowing its products to
`
`speak for themselves in the marketplace, resorted to false advertising and trade libel in order
`
`to try to boost its own position and diminish Hansen’s. The Lanham Act and California law
`
`provide Hansen with remedies for the false advertising and trade libel that has harmed its
`
`commercial interests.
`
`Plaintiffs.
`
`PARTIES
`
`1.
`
`Hansen Beverage Company is a Delaware corporation, licensed to do business
`
`1 2 3 4 5
`
`6 7
`
`3
`
`9
`
`10
`
`in California, with its principal place of business in Corona, California.
`
`11
`
`12
`
`13
`
`2.
`
`Since 1992, Hansen has developed, marketed, sold, and distributed non-
`
`alcoholic beverages such as sodas, fruit juices, energy and sports drinks, smoothies,
`
`Iemonades, and iced teas.
`
`1 4 Defendant.
`
`15
`
`15
`
`3.
`
`Innovation Ventures, LLC dba Living Essentials is, Hansen is informed and
`
`believes, a Michigan corporation with its principal place of business in Novi, Michigan.
`
`17
`
`Living Essentials conducts business in this district.
`
`13
`
`4.
`
`Living Essentials commercially advertises and markets in interstate com merce
`
`19
`
`competing energy drinks, each of which it publicly claims and represents, inter alia,
`
`20
`
`produces five hours of energy.
`
`21
`
`22
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`5.
`
`Because this civil action arises under the Lanham Act, 15 U.S.C. §§ 1051, et
`
`JURISDICTION
`
`23
`
`seq., and specifically 15 U.S.C. § 1125(al(lllBl. this Court has jurisdiction pursuant to
`
`24
`
`15 U.S.C. § 1121, 28 U.S.C. § 1331 and 28 U.S.C. § 1338(3).
`
`25
`
`26
`
`27
`
`6.
`
`This Court also has subject matter jurisdiction pursuant to the provisions of
`
`28 U.S.C. § 1332lal(1) in that it is a civil action between citizens of different states, namely,
`
`California and Delaware and Michigan, and the amount in controversy exceeds $75,000,
`
`28
`
`exclusive of interest and costs-
`
`9.-omzsoasno-.u?sss. I5?‘
`
`-1-
`COMPLAINT
`
`
`
`

`
`
`
`10.
`
`11.
`
`In 1997 Hansen introduced Hansen’s@ Energy Drinks.
`
`Then, in April 2002, Hansen released the first of its popular Monster Energy?’
`
`12.
`
`In 2004, Hansen introduced Lost‘? Energy” Drinks and Rumba”.
`
`In 2005,
`
`20 Hansen introduced Joker Mad Energy“ drinks, a low-carb version of Lost® under the Perfect
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`10*“ brand name as well as a new L0st@ Five-O"" energy drink.
`
`13.
`
`14.
`
`In 2006 Hansen introduced Ace” Energy drinks and Unbound Energyé’ drinks.
`
`Hansen's energy drinks have achieved significant success in commerce
`
`throughout the United States and are favored energy drinks for millions of customers.
`
`Living Essentials.
`
`15.
`
`Living Essentials’ 5-HOUR ENERGY“) drinks are competing energy-drink
`
`products that Living Essentials markets and sells in interstate commerce throughout the
`
`23 United States.
`
`P.004260&S.'i0:0?56S.15?
`
`~2-
`COMPLAINT
`
`?_,j_j_?
`
`
`
`1
`2
`3
`4
`5
`
`6
`
`Finally, this Court has subject matter jurisdiction over Hansen's California
`7.
`unfair competition and false advertising claims pursuant to 28 U.S.C. § 1338lb}, in that these
`claims are joined with a substantial related claim under the Lanham Act and this Court also
`has supplemental ]UrlSdlCfl0fl over the state-law claims pursuant to 28 U S C § 1367(a)
`
`VENUE
`
`8.
`1391(b).
`
`Venue in this district is proper pursuant to the provisions of 28 U.S.C. §
`
`MATERIAL ALLEGATIONS
`
`9.
`
`Hansen's energy drinks have been extremely successful and are sold
`
`throughout the United States by more than 100,000 retail stores, including convenience
`
`

`
`1
`
`2
`
`3
`
`4
`5
`5
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`7
`
`8
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`16.
`
`Living Essentials advertises its 5—HOUR ENERCVE drinks in commercial
`
`advertising across the United States.
`
`17.
`
`Rather than engage in fair competition in the marketplace, however, and allow
`
`consumers to exercise their own choice, Living Essentials has resorted to false advertising
`and trade libel to attempt to promote its 5—HOUR ENERCW drinks and falsely to discourage
`customers from using or purchasing Hansen's energy drinks.
`
`The False Advertising Claims.
`
`18.
`
`Indeed, the name, "5-HOUR ENERCYW," is, in and of itself, false and
`
`9 misleading precisely because it states, or at a minimum implies, that two ounces of a 5-
`
`10 HOUR ENERGY‘? drink produces a sustained level of "energy” for five hours. This is
`
`11
`
`12
`
`13
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`14
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`15
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`15
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`17
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`18
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`19
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`20
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`21
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`22
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`
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`untruthful based on the drink’s ingredients and generally accepted principles of
`
`biochemistry, pharmacology and physiology.
`
`19.
`
`One 5~HOUR ENERCY® commercial states:
`
`Why do energy drinks make you crash? One minute you’re wired up. The
`next you feel worse than before. The answer is large amounts of sugar and
`caffeine. But with 5-Hour Energy you could sail through your day with no
`jitters or crash.
`It contains 3 Vitamins for energy and amino acids for focus,
`zero sugar and only 8 calories. Drink it in seconds and in minutes you're
`feeling alert and productive and that feeling lasts for hours. 5~Hour Energy.
`Hours of energy now. No crash later. Available at these fine stores.
`
`20.
`
`Living Essentials’ claim that “with 5-HOUR ENERCW‘ you could sail through
`
`your day with no jitters or crash" is, based on the drinl<'s ingredients and generally accepted
`
`principles of biochemistry, pharmacology and physiology, a false and misleading statement
`
`of material fact about 5-HOUR ENERCW.
`
`21.
`
`Living Essentials’ claim that 5-HOUR ENERGY“? "contains B Vitamins for
`
`energy and amino acids for focus" is, based on the drinks ingredients and generally
`
`accepted principles of biochemistry, pharmacology and physiology, false and misleading.
`
`22.
`
`Living Essentials’ claim that with 5-HOUR ENERCW9 one can "drink it in
`
`seconds and in minutes you're feeling alert and productive and that feeling lasts for hours”
`
`is, based on the drinks ingredients and generally accepted principles of biochemistry,
`
`pharmacology and physiology, false and misleading.
`
`P:OO42£iO85.10:0?565.l5?
`
`—3v
`COMPLAINT
`
`

`
`
`
`4
`
`CONIONU1
`
`23.
`
`Living Essentials’ claims in this as well as additional advertisements that
`
`SHOUR ENERGY” provides "Hours of energy now. No crash later" are, based on the
`drink's ingredients and generally accepted principles of biochemistry, pharmacology and
`physiology, false and misleading.
`
`24.
`
`Another 5~HOUR ENERGY“) commercial states:
`
`Why are energy drinks bad? 12 spoons of sugar, that's bad. 200 calories, bad.
`Guarana, tisk, tisk. Good for a short jittery burst, then a dehabilitating crash.
`So don't drink energy drinks, drink 5-Hour Energy.
`It's not a drink, more like a
`sip. Well with that sip you'll feel alert and focused for hours, without the
`crash or jitters.
`it has zero sugar, only 4 calories and no guarana. 5-Hour
`Energy. Hours of energy now. No crash later.
`
` 3
`
`10
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`12
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`13
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`14
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`24
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`25
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`26
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`27
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`28
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`25.
`
`Living Essentials’ claim in this as well as additional advertisements that "you'll
`
`feel alert and focused for hours without the crash or jitters” is, based on the drinl<'s
`
`ingredients and generally accepted principles of biochemistry, pharmacology and
`
`physiology, false and misleading.
`
`26.
`
`Living Essentials’ claim in this as well as additional advertisements that 5-
`
`HOUR ENERGY?’ provides "Hours of energy now. No crash later" is, based on the drink's
`
`ingredients and generally accepted principles of biochemistry, pharmacology and
`
`physiology, false and misleading.
`
`27.
`
`And another advertisement claims:
`
`This is you after an energy drink. Unfortunately, so is this. Why do energy
`drinks make you crash? One minute you're wired up. The next you feel
`worse than before. The answer is large amounts of sugar and caffeine. That's
`why you should try a new liquid energy shot called 5 Hour Energy. With 5
`Hour Energy, you can leave grogginess behind and sail through your day
`without feeling jitte , tense or, you know. That's because 5 Hour Energy
`contains a powerful
`lend of B Vitamins for energy and amino acids for focus,
`alertness and better mood. There is zero sugar, about as much caffeine as a
`cup of coffee and only 4 calories. The 2-ounce shot takes just seconds to
`drink and in minutes you're feeling bright, awake and productive and that
`feeling lasts for hours. So if your energy drink makes you crash, switch to 5
`Hour Energy. Hours of energy now, no crash later. Find out if 5 Hour Energy
`is right for you.
`it's available at these fine stores, or for more information go to
`5hourenergy.com.
`
`28.
`
`Living Essentials’ claims in this as well as additional advertisements that 5-
`
`HOUR ENERGY‘?-‘ provides "Hours of energy now. No crash later” are, based on the drink’s
`
`p;oo425oas.ao:o:rsss.1sr
`
`-4-
`COMPLAINT
`
`

`
`ingredients and generally accepted principles of biochemistry, pharmacology and
`
`physiology, false and misleading
`
`29.
`
`Living Essentials’ claim in this as well as additional advertisements that "with
`
`5-HOUR ENERGW you can leave grogginess behind and still do your day without feeling
`jittery and tense or, you know" is, based on the drink’s ingredients and generally accepted
`
`principles of biochemistry, pharmacology and physiology, false and misleading.
`
`30.
`
`Living Essentials‘ claim in this as well as additional advertisements that "5-
`
`I 2 3 4 5
`
`6 7
`
`8 HOUR ENERCW’ contains a powerful blend of B Vitamins for energy and amino acids for
`
`9
`
`focus, alertness and better mood,” is, based on the drink’s ingredients and generally
`
`10
`
`accepted principles of biochemistry, pharmacology and physiology, false and misleading-
`
`31.
`
`In addition, 5-HOUR ENERCW conspicuously makes the following claims on
`
`each drinl<’s container:
`
`"Hours of energy now"
`"No crash later"
`"Feel it in minutes 0 Lasts for hours"
`"Sugar free"
`”0 net carbs”
`
`' 0
`
`I
`0
`-
`
`32.
`
`5-HOUR ENERC‘/@ Decaf conspicuously makes the following claims on each
`
`11
`
`1 2
`
`1 3
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`14
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`15
`
`15
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`1 7
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`drinl<’s container:
`
`13
`
`19
`
`20
`
`21
`
`22
`
`-
`0
`0
`0
`-
`I
`
`"Hours of energy now"
`"No crash later”
`"Feel it in minutes ' Lasts for hours”
`"Sugar free"
`"Decaf"
`"Only 4 calories"
`
`33.
`
`5—HOUR ENERCW3 EXTRA STRENGTH conspicuously claims on each drink’s
`
`23
`
`container:
`
`24
`
`25
`
`25
`
`27
`
`23
`
`0
`-
`
`”Sugar free"
`"Only 4 calories”
`
`34.
`
`Living Essentials’ claims in the quoted advertisements and/or on the product
`
`containers that 5—HOUR ENERCVG’ products provide "hours of energy now," or "sail through
`
`your day with no jitters or crash," or “in minutes you're feeing alert and productive and that
`
`euoszeoas. ‘l 0:U?565. 157
`
`-5-
`COMPLAINT
`
`
`
`

`
`feeling lasts for hours 5-Hour Energy,” or "Hours of energy now. No crash later," or "Feel it
`in minutes lasts for hours" are, based on 5-HOUR ENERCY@'s ingredients, at least as
`disclosed on the applicable product container labels, false and misleading based on
`generally accepted principles of biochemistry, pharmacology and physiology and cannot
`and do not produce the effects claimed.
`
`Living Essentials’ claims in advertisements that its 5-HOUR ENERGY” products
`35.
`make the drinker "feel alert and focused for hours, without the crash or jitters” are, based on
`the products’ ingredients, at least as disclosed on the applicable product container labels,
`false and misleading, given generally accepted principles of biochemistry, pharmacology
`and physiology, and do not and cannot produce the effects claimed.
`
`36.
`
`5—HOUR ENERCYE’ Decaf's ingredients, at least as disclosed—"sugar free,"
`
`“Decaf,” "6 mg. of caffeine," "only 4 calories"—given generally accepted principles of
`
`biochemistry, pharmacology and physiology, do not and cannot provide "Hours of energy
`
`now,” "Feel it in minutes 0 Lasts for hours," "No crash later,” as Living Essentials claims.
`
`Those claims are further false and misleading based on the products’ ingredients including,
`
`in particular, the limited amount of caffeine and sugar in the products, at least as disclosed
`
`on the applicable container labels.
`
`37.
`
`5-HOUR ENERCW’ Extra Strength's claims, described in paragraphs 18-30 and
`
`33 above, including its claim derived from the name of the product itself, are false and
`
`misleading based on the product's claims to be "sugar free” and "only 4 calories” and the
`
`product's other ingredients at least as disclosed on the applicable container labels, given
`
`generally accepted principles of biochemistry, pharmacology and physiology.
`
`The Trade Libel.
`
`38.
`
`Living Essentials’ statements that energy drinks contain "12 spoons of sugar,
`
`that’s bad. 200 calories, bad. Guarana, tisk, tisk.” falsely disparages energy drinks in
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`general that contain some or all the ingredients to which Living Essentials refers, because
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`such statements falsely impute adverse characteristics to and consequences of such
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`27
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`23
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`ingredients. Such statements constitute a trade libel of andfor against energy drinks in
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`P.-00426OB5.lD:G?565.15?
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`~6~
`COMPLAINT
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`

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`general, including Hansen's energy drinks which fall within the class of drinks known as
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`energy drinks.
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`Living Essentials’ statements that energy drinks are “good for short jittery
`39.
`bursts, then a dehabilitating crash" are false and misleading statements, and by clear
`reference andfor inference falsely, disparage energy drinks in general, including Hansen’s
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`energy drinks which fall within the class of drinks known as energy drinks.
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`40.
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`Living Essentials’ statement “why do energy drinks make you crash” is false
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`and misleading and constitutes trade libel in that by clear reference andfor by inference it
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`falsely disparages energy drinks in general, including Hansen’s energy drinks which fall
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`within the class of drinks known as energy drinks.
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`41.
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`Living Essentials’ statements, ”One minute you're wired up. The next you feel
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`worse than before” are false and misleading and constitute trade libel in that, by clear
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`reference andfor by inference they falsely disparage energy drinks in general, including
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`Hansen’s energy drinks which fall within a class of drinks known as energy drinks. Such
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`statements suggest that energy drinks in general, including Hansen's energy drinks, contain
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`large amounts of sugar and caffeine which produce results that 5—HOUR ENERCW drinks do
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`not despite the fact that 5-HOUR ENERGY“) ‘drinks contain even higher levels of caffeine
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`than Hansen's energy drinks. Such claims about Hansen’s energy drinks are in any event
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`false and misleading.
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`42.
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`Living Essentials’ statement, ”the answer is large amounts of sugar and
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`caffeine” is false and misleading and constitutes trade libel in that it falsely disparages energy
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`drinks in general, including Hansen’s energy drinks which fall within the class of drinks
`
`known as energy drinks.
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`43.
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`Living Essentials’ statement that ‘with 5-HOUR ENERCW’ you can leave
`
`grogginess behind and still do your day without feeling jittery and tense or, you know" is
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`false and misleading and constitutes trade libel in that it falsely disparages energy drinks in
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`general, including Hansen's energy drinks which fall under the claim of drinks known as
`
`energy drinks.
`
`P:OD426OB5.1{):07555. :5?
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`-7-
`COMPLAINT
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`

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`
`
`OD\lO‘1U1.h.t....igg...;
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`The statements quoted above are false and misleading statements of material
`44.
`fact about Living Essentials’ own products and also, by clear inference, about Hansen’s
`
`energy drinks, such that they are likely to influence the purchasing decisions of a substantial
`number of reasonable consumers and actually deceive or have the tendency to deceive a
`substantial segment of the reasonable consumer audience.
`
`45.
`
`All such statements constitute false advertising that Section 43(al of the
`
`Lanham Act, 15 U.S.C. § 1125(a), and also California’s unfair competition law, Business &
`Professions Code §§ 17200 and 17500, prohibit-
`
`46. Worse, the effect such advertising has, and will have, on reasonable
`
`consumers makes Living Essentials’ false claims about itself and its false statements about
`
`Hansen energy drinks even more pernicious.
`
`FIRST CLAIM FOR RELIEF
`
`[FALSE ADVERT|S|NG—VIOLATlON OF 15 U.S.C. § 1125(a)|
`
`Hansen incorporates by this reference paragraphs 1 through 46, above.
`
`Hansen sells beverages in interstate commerce throughout the United States.
`
`Living Essentials sells its 5-HOUR ENERCW products in interstate commerce
`
`47.
`
`48.
`
`49.
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`throughout the United States and it competes with Hansen's energy drinks.
`
`50.
`
`Living Essentials engages in commercial advertising in interstate commerce
`
`across the United States.
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`10
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`51.
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`Living Essentials’ advertisements contain false and misleading statements of
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`fact concerning its own product.
`
`52.
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`In addition, Living Essentials’ advertisements contain false and misleading
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`statements of fact that the reasonable consumer would readily impure, andfor is likely
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`readily to impute, to energy drinks in general and to Hansen's energy drinks in particular.
`
`53-
`
`Living Essentials‘ false and misleading commercial advertising in interstate
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`commerce violates Section 43{a) of the Lanham Act, 15 U.S.C. § 1125(a), in that: it contains
`
`false and misleading statements of fact in commercial advertising about its own prod ucts and
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`about Hansen's products; those representations are material; they are likely to influence the
`
`P:OD42608S.i0:C|756S rs:
`
`~8-
`COMPLAINT
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`

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`12
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`15
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`28
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`59.
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`In addition, Living Essentials’ conduct, as alleged above, violates § 5 of the
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`Federal Trade Commission Act, 15 U.S.C. § 45{a)(1), in that it constitutes an unfair method
`
`of competition in or affecting commerce and unfair and deceptive acts and practices in or
`
`affecting corn merce.
`
`60.
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`Living Essentials’ conduct, as alleged above, constitutes false advertising and
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`unfair competition pursuant to the provisions of Business 8.: Professions Code §§ 17200 and
`
`P:GD42608S.tO:O756S.l5?
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`-9-
`COMPLAINT
`
`@'\I5"U1-uh!-Jl\J_.L
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`purchasing decision of a substantial number of reasonable consumers; those
`misrepresentations actually deceive or, at a minimum, have the tendency to deceive a
`substantial segment of the reasonable consumer audience; and, Hansen has been injured,
`and in the future is likely to continue to be injured, as a result of the misrepresentations,
`both by the direct diversion of sales from Hansen to Living Essentials and by a lessening of
`the goodwill associated with Hansen’s products.
`
`54.
`
`As a direct and proximate result, Hansen has suffered injury and harm and will
`
`continue to suffer such harm, including money damages in excess of $75,000, exclusive of
`
`interest and costs, the exact amount of which Hansen will prove at trial.
`
`10
`11
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`Hansen is informed and believes that Living Essentials’ false and misleading
`55.
`advertising is willful.
`
`56.
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`Hansen has no adequate remedy at law with respect to Living Essentials’ future
`
`false and misleading commercial advertising precisely because Hansen is informed and
`
`believes that Living Essentials will continue in its same course of conduct unless and until it
`
`has been restrained by an order of this Court.
`
`SECOND CLMM FOR RELIEF
`
`|FA|.SE ADVERTlSING—CAl.|FORNIA l.AW|
`
`57.
`
`58.
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`Hansen incorporates by this reference paragraphs 1 through 56, above.
`
`Living Essentials’ conduct, as alleged above, violates the misbranding
`
`provisions of the Federal Food, Drug and Cosmetic Act, 21 USC §§ 343 and 350, which
`
`make the false or misleading labeling of, inter alia, dietary and vitamin supplements
`
`unlawful and illegal.
`
`

`
` Ԥ__ _
`
`17500.
`
`As a direct and proximate result, Hansen has suffered injury and harm and will
`61.
`continue to suffer injury and harm both by the direct diversion of sales from Hansen to
`Living Essentials and by a lessening of the goodwill associated with Hansen's products.
`62.
`Hansen has no adequate remedy at law with respect to Living Essentials’ future
`false and misleading commercial advertising precisely because Hansen is informed and
`
`THIRD CLAIM FOR RELIEF
`
`[TRADE LlBE|.|
`
`63-
`
`Hansen incorporates by this reference paragraphs 1 through 62, above.
`
`64.
`By virtue of all of Living Essentials’ false and misleading statements as set forth
`above, and by singling out Hansen's energy drinks by their well-known ingredients, Living
`
`general and of Hansen's energy drinks in particular, resulting in the money damages that
`Hansen has suffered.
`
`65.
`
`As a direct and proximate result of all of Living Essentials’ false and misleading
`
`statements as set forth above and also as a direct and proximate result of Living Essentials’
`
`trade libel and intentional disparagernent of the quality of energy drinks in general and of
`
`
`
`66.
`
`Living Essentials’ conduct constitutes an intentional misrepresentation and
`
`false, defamatory statements, all with the intention of causing injury to Hansen and is
`
`oppressive, fraudulent and malicious conduct as defined in California Civil Code § 3294.
`
`Hansen should recover, in addition to its actual damages, exemplary and punitive damages
`
`according to proof.
`
`WHEREFORE, Hansen Beverage Company prays for relief against Living Essentials as
`
`P:oa42soa5.m:o7ss5.1sr
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`-10-
`
`COMPLAINT
`
`

`
`1
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`follows:
`
`2
`3
`4
`
`For preliminary and permanent injunctive relief against Living Essentials
`1.
`pursuant to 15 U.S.C. §§1116 and 1125(a) and Business 8.: Professions Code § 17203;
`2.
`For an award of money damages;
`
`5
`5
`7
`3
`9
`10
`
`For the recovery of Living Essentials’ illegal and unjust profits;
`3.
`For three times Hansen's actual money damages;
`4.
`For a finding that Living Essentials conduct constitutes an exceptional case,
`5
`such that Hansen is entitled to its attorneys fees in addition to its costs and expenses of suit,
`6.
`For disgorgement of Living Essentials’ illegal and unjust profits;
`7.
`For punitive and exemplary damages; and,
`
`8.
`
`For such other and further relief as this Court deems just and proper.
`
`DATED: July 1, 2008
`
`SOLOMON WARD SElDENWURM 8: SMITH, LLP
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`
`ORMAN L. 5
`EDWARD}. MONTYRE
`ALISON L. PIVONKA
`Attorneys for Hansen Beverage Company
`
`X
`
`- 2'"' '_
`
`_.--
`
`Hansen Beverage Company demands a jury trial of all claims triable by a jury.
`
`DEMAN D FOR IURY
`
`DATED: July 1, 2008
`
`SOLOMON WARD SEIDENWURM 8: SMITH, LLP
`
`
`
` ORMAN L. 5
`
`TH
`EDWARD]. MCINTYRE
`ALISON L. PIVONKA
`Attorneys for Hansen Beverage Company
`
`P:DEi42EuDB5.10;t]7SEi5.15?
`
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`
`

`
`UNITED STATES
`DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`SAN DIEGO DWISIDN
`
`It
`
`1 52443
`
`— TC
`
`July 01 . 2008
`10: ‘I 1 :33
`
`Div Fil Non—Pri5
`USAD IL: OECVHBB
`Judga..:
`IRHA E GONZALEZ
`Amount:
`Chackt: B02088
`
`$350.00 CK
`
`Tatal—>
`
`$350.00
`
`FRUH.’ HMSEN BEVERAII C0.
`VS
`
`INNOVATIUNS VENTIMES
`
`

`
`SHEET .
`.
`‘$21544 (Rev izitm
`I'hi: IS 44 civil cover sheet and the iriforrnatinn contained herein neither replace nor suppleutent the filing and service efpieadings or other papers as required by law. except as
`provided by local rules cl’ court This form. approved by the Judicial Conference of the United States In September I9”.-'-‘I, is required for the use oflhe Clerk of Court for the
`- u use oftht: CIVII docket sheet. SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.
`I. in PLAINTIFFS
`ntzragioitmrs
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`HANSEN BEVERAGE COMPANY,
`INNO 'ATIoN VENTURES, LLC c1713'lailL\I,iir1$iG='_.-
`corporation
`ESSENTIALS. a Michigan corporation
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`{EXCEPT [N U S PLAINTIFFCASIESI
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`{C} AtIr:nic)"sIFii1n Name. Address. and Telepltotte Number)
`Norman L. Smith (SBN l06344)
`Edward J. Mclntyre (SBN 30402)
`Solomon Ward Seidenwunn & Smith, LLP
`40] B Street, Suite 1200, San Diego, CA 9210]
`Telephone: (619) 23i—i33o3;g:_simi1e; 619 23 I-4755
`ll. BASIS OF JURISDICTION (Place fltI'I"X"II'I One Box Only}
`El | US Guvtrrnmcm
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