CytoSport, Inc. v. Vital Pharmaceuticals, Inc.
894 F. Supp. 2d 1285
E.D. Cal.2012Background
- CytoSport sued VPX for trademark and false advertising with Muscle Milk vs Muscle Power in octagonal tetra-packs.
- VPX counter-claimed that CytoSport’s use of Milk/Contains No Milk deceives consumers and seeks cancellation and declaratory relief.
- FDA warning letter (2011) questioned Muscle Milk labeling; FDA has not issued a final determination.
- Prior preliminary injunction favored CytoSport; Muscle Power removed from market and VPX introduced a competing product.
- CytoSport and VPX submitted surveys (Gelb and Klein) and expert testimony on consumer confusion; Gelb survey later excluded.
- The court addressed motions for summary judgment on VPX’s counter-claims and CytoSport’s claims, plus a request for an emergency stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are VPX’s Lanham Act counter-claims barred by FDA deference? | Pom Wonderful controls; FDA must decide deception first. | FDA evaluation should not bar claims; final agency action pending. | Yes, barred; claims deferred to FDA per Pom Wonderful. |
| Are VPX’s state-law false advertising and UCL claims time-barred? | Injury occurred when Muscle Power launched; accrual timely. | Claims timely due to ongoing injury since competition began. | No time-bar; claims timely within four-year period. |
| Does CytoSport qualify for summary judgment on VPX’s counter-claims? | Evidence shows no material likelihood of confusion or deception. | Surveys and records show confusion and deceptive labeling. | Yes, CytoSport granted summary judgment on VPX’s five counter-claims. |
| Is CytoSport entitled to judgment on its infringement and cancellation claims (Muscle Milk) against VPX's Muscle Power? | Senior valid mark; likelihood of confusion favors CytoSport; infringement proven. | Marks are distinct; insufficient proof of likelihood of confusion; defense of incontestability. | No; genuine disputes on similarity, actual confusion, and VPX’s intent prevent summary judgment. |
| Is CytoSport entitled to summary judgment on the false advertising claim (Claim Seven)? | VPX’s 600% sugar and 183% fat comparisons are literally false. | Claims could be interpreted colloquially and not literally false; may mislead. | No; material factual disputes preclude summary judgment. |
Key Cases Cited
- Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012) (FDA authority preempts private Lanham Act claims pending final agency action)
- Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280 (9th Cir. 1992) (surveys admissibility and weight; gatekeeper role under Daubert)
- AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) (eight-factor test for likelihood of confusion)
- Goble v. Nat’l Broad. Co., 727 F. Supp. 2d 815 (C.D. Cal. 2010) (illustrates weighing of expert surveys in confusion analysis)
- Thane Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894 (9th Cir. 2002) (illustrates robustness of significance of similarity factor)
- Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252 (9th Cir. 2001) (recognizes fact-intensive nature of trademark disputes; jury questions often arises)