Energy shot dispute confuses retailers

Posted June 17, 2008 3:48 pm by Matt Casey

, BevNET.com Staff Writer

A legal dispute between rival companies in the increasingly
litigious energy shot category has confused retailers and left at least one
company not involved in the dispute to take measures to keep its product on
shelves.

Living Essentials, makers of the category’s first-mover 5
Hour Energy, sent a letter to retailers saying that they won an injunction
against a “’6 Hour’ energy shot that closely mimicked 5-Hour Energy.” The
letter continued to say that U.S. District Court ordered the immediate recall
of the imposter product.

But the letter did not specify which “6 Hour” shot, leaving retailers
unsure of which products claiming six hours of energy needed to be removed.
Living Essentials’ dispute is with Alpha Performance Labs/N2G Distributing
Inc., according to a March, 7 court filing, which produces a product called 6
Hour Energy. The 6 hour product closely mimics the appearance of the 5-hour
product. Both feature orange backgrounds with dark, rocky foregrounds and a
silhouetted figure hiking or running.

That factor – the label – is what led to the recall, according
to N2G owner Jeff Diehl, and the product could return under the same name, but
with different package graphics.

“We’re still deciding that at this time,” Diehl said.

The injunction does not affect any other energy shots -
something that BDI Marketing, producers of Mini Thin Rush 6 Hour Energy,
clarified in a letter to retailers. The company included an image of the rival
products (seen at right) and clearly labeled the product that should be removed
from shelves.

Carl Sperber, Living Essentials’ vice president of
marketing, said the company tried to be as clear and concise as possible when
informing retailers of the recall. Sperber said the company did not intend to
snare other products with the letter, but “We didn’t ask for competitors to so
closely mimic our name and our look that it caused confusion in the marketplace.”

That mimicry, he added, is why the company has filed
lawsuits – including one against 6 Hour Power. Sperber said he did not know if
the company planned to take action against BDI Marketing for their Mini Thin
Rush 6 Hour Energy.

Asked if BDI Marketing would seek legal action against
Living Essentials for sending a letter so vague as to potentially implicate the
wrong product, Emilie Myers, head of product development, said “We have no
comment at this time.”