VPX’s CEO Jack Owoc isn’t backing down just yet. Today, VPX filed an appeal of the injunction that was placed against them regarding their Muscle Power drink. As posted here, a federal judge ruled that Muscle Power’s name and packaging was too similar to CytoSports’s Muscle Milk. The following story appeared on BevNet.com:

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.”
Source: BevNET.com Staff

Last week there was a discussion here regarding Muscle Power and Muscle Milk. In my initial post I commented:

VPX also takes a risky move in their package design. The fonts and the packaging itself look very, very similar to Muscle Milk. I understand there are only so many packages that can be used for drinks but the design and look of it has free reign. One can only assume this is an attempt to cause confusion for the consumer. The ad shows the two products side by side and furthers my point.

A Federal Court heard more evidence in a lawsuit filed by CytoSport (makers of Muscle Milk) against VPX (makers of Muscle Power) regarding this very issue. The following press release has been issued by Cytosport which summarizes the court’s findings. If you’d like to read the entire court document, click here (PDF).

CytoSport Secures Preliminary Court-Ordered Injunction of Muscle Power Due to Infringement of Muscle Milk® Trademark
On Wednesday, May 6th in Sacramento, CA, a Federal Court issued an order requiring Vital Pharmaceuticals, Inc. (VPX) to immediately remove Muscle Power from the marketplace after concluding that the product infringes on CytoSport’s trademark rights of Muscle Milk®.

This preliminary injunction was prompted after CytoSport filed a lawsuit against VPX, stating that Muscle Power’s packaging, or “trade dress,” was deceptively similar to Muscle Milk®’s packaging.  In its decision, the court stated that “VPX has chosen an identical font, in an identical color, on an identically shaped package, and placed the mark on the package in an identical location.”  The court also stated that “when the marks are viewed as a whole with each product’s respective trade dress, the court has no difficulty concluding that the two marks are overwhelmingly similar.”

Upon concluding that VPX has violated CytoSport’s trademark rights, the court also stated that “VPX could have easily used a trade dress more consistent with its other RTD products, e.g. Redline, Black Pearl and Pump 7.”  Given that the injunction is preliminary in nature, the lawsuit will continue while the injunction is in place.

“We are gratified by the court’s ruling and will continue to vigorously enforce our rights to protect our brand, our marketing partners, and our consumers against confusion in the marketplace,” says Greg Pickett, Co-Founder /CEO of CytoSport.

About CytoSport
CytoSport, the maker of Muscle Milk®, is among the largest sport nutrition protein beverage companies in the U.S. and offers a complete line of protein-enhanced powders, shakes and bars. Muscle Milk® was recently named the 2008 Ready-to-Drink Beverage of the Year by bodybuilding.com, Best Functional Beverage and Beverage of the Year by BevNet and 2009 Company of the Year by Beverage Forum presented by Beverage Marketing Corporation and Beverage World.  For more information on Muscle Milk or additional CytoSport products, visit: www.cytosport.com.