Energy shot manufacturer N.V.E., Inc. is requesting a new trial in Michigan federal court in the wake of a trademark infringement case verdict in February that left the company owing $10.6 million in damages to rival Innovation Ventures LLC, the makers of 5-Hour Energy.
According to legal news publication Law360, N.V.E., alleges that Innovation Ventures made false statements in the trial that swayed the jury’s verdict, including the inference that N.V.E. ran a false advertising survey.
“There was no evidence admitted at trial that would support this argument,” N.V.E. said.
N.V.E. is also claiming that Innovation Ventures owner and CEO Manoj Bhargava falsely testified that the company had won a prior decision against another “6 Hour” energy shot. N.V.E. manufactures a line of shots called 6-Hour Power.
Attorney Mark A. Cantor of Brooks Kushman PC, the firm representing Innovation Ventures, told Law360 that “everything [N.V.E.] raised was fully considered and properly decided by the jury.”
It’s a case that dates back to 2008, when Innovation Ventures first filed a suit claiming N.V.E.’s 6-Hour Power line of energy shots violated its trademark. The case would take several complicating turns in the eight years that followed, with N.V.E. filing a countersuit, the death of the judge assigned to the case, and the March 2015 shooting of replacement judge Terrence G. Berg just days before the trial was set to begin.
In addition to February’s $10.6 million ruling in Innovation Ventures’ favor, jurors also found that N.V.E. had made $11.5 million from the infringement, which Cantor has said the company intends to pursue as well. Innovation Ventures is also seeking a permanent injunction against N.V.E. selling 6-Hour Power.
“What the jury basically said is people could be easily confused between the two products,” Cantor told Crain’s Detroit Business at the time of the ruling. “Power and energy are synonyms, and we believe some consumers might’ve thought this was actually some extra strength version of client’s own product.”
N.V.E., which also markets and sells Stacker 2 diet and energy supplements, began selling 6-Hour Power in 2006. Innovation Ventures introduced 5-Hour Energy to the marketplace in 2005.