Cytosport, Inc. v. Vital Pharmaceuticals, Inc.

MEMORANDUM AND ORDER

Plaintiff CytoSport, Inc. (“plaintiff’ or “CS”) brings this action against Vital Pharmaceuticals, Inc. (“defendant” or ‘VPX”) for trademark and trade dress infringement, unfair competition and false advertising under federal and state law. (Second Am. Compl., filed Mar. 19, 2009.) This matter is before the court on plaintiffs motion for preliminary injunction, enjoining VPX from marketing, selling, advertising or promoting a liquid protein-based nutritional supplement using the name MUSCLE POWER® or any other trademark confusingly similar to plaintiffs MUSCLE MILK® trademark. Plaintiff also seeks to enjoin VPX, in conjunction with these activities, from using a trade dress that is confusingly similar to the trade dress associated with MUSCLE MILK. VPX opposes the motion, arguing its registered MUSCLE POWER® trademark does not infringe plaintiffs MUSCLE MILK® trademark, which is a weak, descriptive mark, and VPX’s MUSCLE POWER trade dress does not infringe plaintiffs MUSCLE MILK trade dress since the two trade dresses have numerous, specific differences in both color and layout, and VPX has been using its dress trade consistently across all its product lines…