An open can of Monster energy drink, now facing allegations of trademark infringement and unfair competition. Photo: Ashley Rose/Flickr.
A Florida energy supplement manufacturer has launched a federal lawsuit against Delaware-based competitor Monster Energy Co. and daughter company Reign Beverage LLC, alleging they created a knock-off version of its BANG energy drinks.
Weston-based Vital Pharmaceuticals Inc., doing business as VPX Sports, alleges unfair competition and trademark and trade dress infringement — which refers to a product's visual appearance or packaging.
"Competition law places reasonable limits on the proverbial expression 'imitation is the sincerest form of flattery,' " said the complaint, which claims Monster products "shamelessly" mimicked VPX's packaging with Reign Total Body Fuel, a line of sports performance drinks launched in March.
According to the complaint in the Southern District of Florida, VPX owns the Reign trademark and some customers have been confused by the similarity. It also claims Monster pulled the phrase "body fuel" from its trademarked catchphrase, "potent brain body fuel."
The lawsuit pits bold, colorful BANG energy drinks against equally bold and colorful cans of Reign. It seeks damages and an injunction to stop Monster from using the Reign trademark, ordering it to destroy its Reign products and change its future packaging.
But Monster says the lawsuit comes with a clear ulterior motive, and spokesperson Tamara Taylor claims the images in the complaint appear doctored to seem similar in color. Reign's "peach fizz" flavored drink, for example, appears a fluorescent yellow color in the lawsuit, while Taylor claims a Google search shows the can is pale orange.
Counsel to VPX, Marc J. Kesten, denied that claim.
Monster released a statement Friday calling the case "unmeritorious" and claimed it was an attempt to shift attention from a false-advertising suit it filed against VPX and its owner in September 2018.
"VPX’s lawsuit is nothing more than a frivolous and bad-faith attempt to slow the national release of 'Reign Total Body Fuel,' " the statement said.
Monster targeted BANG in the Central District of California for marketing the drink as “not your stereotypical high-sugar, life-sucking soda masquerading as an energy drink," and claiming that one ingredient, super creatine, is 20 times more effective at reaching the brain than regular creatine — even capable of reversing intellectual disabilities and curing diseases.
Monster's suit alleged the ingredient was far from super, and “nothing more than water-soluble creatine — a popular supplement,” which doesn't result in any of the purported health benefits.
U.S. District Judge Jesus G. Bernal denied VPX's request for more time to answer the complaint Friday, remarking that the defendants had "walked into a mess of their own making."
VPX has also been hit with class action lawsuits over its super creatine claims, and in October 2018, the U.S. Patent Office canceled VPX's patent claim to super creatine. It denies the allegations and has called the lawsuits frivolous.
According to Kesten, Monster's understanding of trademark law based on its press release was "completely wrong." Kesten said the complaint stands on its own merits and bears no relation to the prior suit — in which he highlighted Monster's original attorney Marc P. Miles of Shook, Hardy & Bacon was disqualified over allegations he'd previously represented VPX.