N.V.E., Inc. v. Innovation Ventures, LLC, No. 10-2355 (6th Cir. 2012)Annotate this Case
LE, creator of the “5-hour ENERGY” energy shot, asserted that N.V.E., creator of the “6 Hour POWER” energy shot, infringed its trademark, under the Lanham Act. 15 U.S.C. 125(a). LE distributed a “recall notice” stating that NVE’s “‘6 Hour’ energy shot” had been recalled. NVE claims that the notice constituted false advertising in violation of the Lanham Act and anti-competitive conduct in violation of the Sherman Act, 15 U.S.C. 2. The district court first found that a likelihood of confusion did not exist between “6 Hour POWER” and “5-hour ENERGY” and held that the recall notice did not constitute false advertising or a violation of the Sherman Act. The Sixth Circuit reversed with respect to trademark infringement and false advertising claims, but affirmed with respect to Sherman Act claims. The “5-hour ENERGY” mark is suggestive and protectable, but the factors concerning likelihood of confusion were closely balanced, making summary judgment in appropriate. There were also unresolved questions of fact as to whether the “recall notice” was misleading, but there was no Sherman Act violation because it was relatively simple for NVE to counter it by sending notices that “6 Hour POWER” had not been recalled.