ABB - VPX

In May 2006, Fort Lauderdale, Florida based Vital Pharmaceuticals, Inc. ("VPX") brought a lawsuit against American Body Building Products, LLC ("ABB"), which is based in Walterboro, South Carolina, for trade dress infringement and unfair competition. ABB is a wholly owned subsidiary of Optimum Nutrition, Inc, which is based in Aurora, Illinois. VPX alleged that it had proprietary rights in the bottle in which it marketed and sold its ready to drink sports nutritional beverage product "Redline" and that ABB had violated those rights by marketing and selling its competing "Speed Shot" product in a similar bottle. During this time frame, VPX threatened and sued other competitors for using similar bottles to market and sell their ready to drink nutritional beverage products. A week long trial, which commenced on January 8, 2007 and concluded on January 12, 2007, was held in the United States District Court in Palm Beach County. The evidence presented at trial established that, in initially obtaining its Redline bottle, VPX merely obtained an existing, stock 8 oz. bottle from CCL Container that was being marketed to other customers. At the conclusion of the trial, the court ruled in favor of ABB and issued a 28 page order holding: that the trade dress claimed by VPX, consisting predominantly of a standard, round shouldered 8 oz. bottle, was not inherently distinctive, had not achieved any secondary meaning and was primarily functional. The court also held that there was no likelihood that consumers would be confused as to the source of the products. The court also noted that the legal action initiated by VPX against ABB appeared "to be nothing but a thinly-veiled effort to stifle legitimate competition." The court currently is considering whether VPX should be required to pay ABB the attorneys' fees it incurred in its defense of the action.
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