VPX filed an appeal Friday of the injunction against its Muscle Power protein drink given to them this week by a federal judge.
The judge ruled that Muscle Power’s name and packaging was too similar to that of Cytosport’s Muscle Milk, the current leader of the fast-growing protein drink market.
VPX CEO Jack Owoc said he was disappointed by the judge’s ruling, which will require the company to remove all Muscle Power product from shelves and dispose of it.
VPX’s statement follows below, and more details on the injunction can be found here.
Statement from VPX:
VPX filed an appeal of the injunction issued by a district court in California precluding VPX from using its registered trademark “Muscle Power®” and the trade dress on its packaging. Jack Owoc, CEO and founder of VPX, explained that VPX was highly disappointed by the ruling: “We are very disconcerted by the court”s ruling and think that it was misled in regard to Cytosport”s rights and the nature of the competition in our industry. The only similarities in our trademarks are the use of the word ”Muscle,” but there are more than 60 registered trademarks at the Patent and Trademark Office in class 5 alone containing the word ”Muscle.” ”Muscle” is commonly used in product and company names in our industry, in part because our products help build muscle. Cytosport never objected to the registration of our trademark, despite having an opportunity to do so, and the Patent and Trademark Office found no conflict between “Muscle Power®” and “Muscle Milk®.” We have never intended to confuse customers into thinking our product was Muscle Milk® -we want them to know it’s different and better! We point out in our advertising why Muscle Power® is a better product — Muscle Milk® contains 600% more sugar and a 183% more fat than Muscle Power®. Muscle Power contains 200% more fiber and 89% less carbohydrates. We prominently put our VPX logo on the top center panel and, the background, like most VPX products, is the specific 293 Pantone Blue color that consumers have identified as our brand for many years. VPX apologizes to its customers for any disruption this may cause, and we are committed to making our popular Muscle Power® drink available again to our customers and the public as soon as possible.”
“In regard to selling Muscle Power I cannot answer legal questions. The only thing I know for sure is that VPX and its agents (we feel agents refers to distributors but again this is something you should ask your legal counsel) have to stop selling Muscle Power® when a bond is posted.”
“We do not know with 100% certainty that this injunction means that we can still sell Muscle Power prior to the bond being posted. It is my personal understanding and NOT a legal opinion that until the other party, CytoSport, posts a bond to protect and cover the extensive damages that will immediately occur to VPX, its agents and retailers, that we can continue to sell Muscle power®. The bond provides protection in order to compensate VPX for our damages in the event that we discontinue selling Muscle Power and the court’s decision changes after our appeal and/or after our stay of this injunction is considered. “
“THEREFORE, YOU MUST CONSULT YOUR OWN LEGAL COUNSEL IN THIS MATTER. AGAIN, I AM NOT AN ATTORNEY AND THIS IS NOT MEANT TO BE LEGAL ADVICE. ”