Judge Confirms Denial of $6M In Legal Fees
Amid the ongoing legal warfare between the two energy drink giants, Bang Energy (Vital Pharmaceuticals) claimed a victory last week in its battle with Monster Energy Company, as a judge denied the latter’s bid for over $6 million in attorney’s fees.
U.S. District Judge Roy K. Altman affirmed the recommendation of Magistrate Judge Patrick M. Hunt, issued earlier this month, that the case is not considered frivolous or unreasonable in accordance with the Lanham Act, and therefore Monster’s request for fees is unreasonable.
The decision is part of Bang’s trademark and trade dress infringement lawsuit against Monster Energy for allegedly creating a “knockoff” product, specifically REIGN Total Body Fuel, launched in 2019. Judge Altman ultimately decided that Bang’s claims were “totally debunked” upon ruling in favor of Monster last August.
Super Creatine Questions Continue
As the jury trial begins in Monster’s suit over violation of false advertising laws, the initial focus is on the validity of “super creatine,” marketed by Vital as a proprietary ingredient in its drinks.
Law360 reported on the opening days of the trial, during which Monster called Dr. Richard Kreider, director of the Exercise & Sport Nutrition Lab at Texas A&M University, to dispute some of Bang’s ingredient claims. Dr. Kreider testified that super creatine has a different molecular structure to creatine, and that no evidence exists that shows it can increase creatine levels in the body “in the way a traditional creatine dietary supplement does.”
His testimony came after Eugene Bukovi, EVP of Sales at Vital, asserted in court the prior day that super creatine is, in fact, creatine.
Beyond disputing the term itself, Krieder also noted that the 25mg of super creatine in a can of Bang is too small to produce any tangible physiological benefits or effects. He referenced Vital’s own studies on the ingredient, including one in which the company observed the effects of up to 2,000mg daily of super creatine. If an individual wanted to replicate that dosage, Krieder said, they would need to drink 80 cans of Bang, and would die from an overdose of caffeine.
According to court documents filed by both sides this week, the next dispute centers around the admissibility of a deposition from Dr. Darryn Willoughby as an expert witness for the prosecution.
Willoughby, who had done work for Vital in the past as a paid consultant, including proposing protocols for studying the effects of super creatine on human performance, had previously testified that the studies did not move forward because Vital CEO Jack Owoc refused to allow him to publish the results if they were unfavorable to the company.
In its brief, Monster contends that Willoughby’s deposition should be admitted, noting that defense attorneys failed to challenge the veracity of his testimony during cross-examination and adding that “Defendants have thrown a kitchen sink of frivolous objections to Dr. Willougby’s deposition because it is harmful to them.”
Attorneys for Vital filed a brief this morning in opposition to the move, claiming that Dr. Willoughby’s “improper and irrelevant deposition” is inadmissible because he was never disclosed as an expert in the case and that he was contracted for work unrelated to the subject of testimony.