Supplement maker Vital Pharmaceuticals, Inc., manufacturer of the Redline RTD energy drink, recently filed suit against Red Bull GmbH, manufacturer of the popular Red Bull energy drink. The suit for a declaratory judgment stems from a cease and desist letter sent to Vital by Red Bull in which Red Bull asserted trademark, trade dress and dilution claims against Vital. The suit appears to have been prompted by Vital’s attempt to register the mark REDLINE for “nutritional supplements, ready-to-drink nutritional beverages, and nutritional bars.” Vital previously registered REDLINE solely for nutritional supplements, Reg. No. 2,857,015 on June 22, 2004.

The trade dress claim concerns Vital’s use of a beverage container colored red, white and blue which Red Bull claims is confusingly similar to its red, blue and silver cans. Vital asserts that a side-by-side comparison demonstrates no likelihood of confusion between the trade dress of either product.

redbull1-2 0061076438588_500X500Vital made the strategic decision to file the declaratory judgment action in response to Red Bull’s cease and desist letter rather than allowing Red Bull to bring the lawsuit in the first instance. There are several distinct advantages to this strategy. As the plaintiff, Vital can assert greater control over the proceedings and choose its forum which, in this case, is South Florida where Vital has its headquarters. Filing first will allow Vital to keep its costs down and maintain its choice of counsel who are, in this case, a well respected Florida intellectual property firm.

One unique aspect of this case for nutritional supplement manufacturers is the addition of allegations in Red Bull’s cease and desist letter in which it claims that Vital may be in violation of FDA and FTC regulations in connection with the sale and promotion of its Redline energy drink. Red Bull claims in its letter that because of the confusingly similar trade dress and trademarks, customers may attribute Vital’s claims regarding its Redline energy drink to Red Bull and, thus, compound the damage to the Red Bull brand.

Complaint, Vital Pharmaceuticals, Inc. v. Red Bull GmbH, 05-61704 (S.D. Fla. 10/21/05).

About 

Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.

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