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Case 2:08-cv-02632-JAM-GGH Document 41 Filed 03/19/09 Page 1 of 14



Glenn W. Peterson, Esq. (CA Bar Assn. No. 126173)
MILLSTONE, PETERSON & WATTS, LLP
2267 Lava Ridge Court, Suite 210
Roseville, CA 95661
Telephone: (916) 780-8222
Fax No: (916) 780-8775

Peter M. de Jonge (Utah Bar No. 7185)
Gordon K. Hill (CA. Bar Assn. No. 218999)
Jed H. Hansen (Admitted Pro Hac Vice)
THORPE NORTH & WESTERN, L.L.P.
8180 South 700 East, Suite 350
Sandy, Utah 84070-0562
Telephone: (801) 566-6633
Facsimile: (801) 566-0750

Mark M. Bettilyon (Admitted Pro Hac Vice)
Sam C. Straight (Admitted Pro Hac Vice)
RAY QUINNEY & NEBEKER, PC
36 South State Street, Suite 1400
Salt Lake City, Utah 84111
Telephone: (801) 532-1500
Fax No: (801) 532-7543

Attorneys for Plaintiff, CytoSport, Inc.


UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA,

(SACRAMENTO DIVISION)

Plaintiff,

CYTOSPORT, INC., a California
corporation,





VITAL PHARMACEUTICALS, INC., a
Florida Corporation,




Defendant.

v.







Case No.: 2:08-CV-02632-FCD-GGH

SECOND AMENDED COMPLAINT
WITH JURY DEMAND
______________________________________





CYTOSPORT’S SECOND AMENDED COMPLAINT

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Case 2:08-cv-02632-JAM-GGH Document 41 Filed 03/19/09 Page 2 of 14



1. Plaintiff CytoSport, Inc., (hereinafter referred to as “CytoSport” or “Plaintiff”), by and

through its counsel, hereby files this Amended Complaint with Jury Demand against Defendant Vital

Pharmaceuticals, Inc. (hereinafter referred to as “Vital Pharmaceuticals” or “Defendant”).

CytoSport complains and alleges as follows:

COMPLAINT

PARTIES, JURISDICTION AND VENUE

2.

Plaintiff CytoSport is a California corporation having a principal place of business at

4795 Industrial Way, Benicia, California, 94510.

3.

Upon information and belief, Defendant Vital Pharmaceuticals is a Florida

corporation having a principal place of business at 15751 SW 41st Street, Suite 300, Davie, Florida,

33331. CytoSport brings this action under Lanham Trademark Act, Title 15, United States Code §

1051, et seq, and under Cal. Bus. & Prof. Code §§ 14245, 17200, and 17500.

4.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§§1331, 1338 and 15 U.S.C. §§1114, 1125, 1119.

5.

Venue is proper in this judicial district pursuant to 28 U.S.C. §1391 since Vital

Pharmaceuticals conducts continuous and systematic business directly related to the trademarks and

trade dress at issue in this case in this judicial district.

6.

This Court has personal specific jurisdiction over Vital Pharmaceuticals as Vital

Pharmaceuticals has purposefully directed its activities toward the state of California and this action

is based upon activities that arise out of or relate to those contacts.

7.

Additionally, this Court has general personal jurisdiction over Vital Pharmaceuticals

since its contacts with California are substantial, continuous, and systematic.

GENERAL ALLEGATIONS

8.

CytoSport is in the business of manufacturing and marketing various nutritional and

dietary supplement products. Among the products offered by CytoSport is a powdered nutritional

supplement for mixing with beverages that is sold in connection with the MUSCLE MILK®

trademark. CytoSport also has a product that is a pre-mixed, liquid nutritional supplement sold in

connection with the MUSCLE MILK® trademark.
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CYTOSPORT’S SECOND AMENDED COMPLAINT


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9.

The MUSCLE MILK® products have been very successful products with sales

growing significantly since introduction. As such, CytoSport has significant common law rights

associated with the MUSCLE MILK® trademark throughout the United States.

10.

The MUSCLE MILK® trademarks are famous and the associated trade dress for the

MUSCLE MILK® pre-mixed, liquid nutritional supplement product is distinctive, is not functional,

and has acquired secondary meaning as a means by which the product is associated with CytoSport.

11.

CytoSport is the owner by assignment of United States trademark registration number

2,714,802 for the mark MUSCLE MILK for use in connection with “powdered nutritional

supplement containing milk derived ingredients for adding to food and drink” and has been using the

mark since at least as early as 1998. A copy of United State trademark registration number

2,714,802 is attached hereto as Exhibit A.

12.

CytoSport is also the owner of United States trademark registration number 2,973,352

for the mark MUSCLE MILK for use in connection with “meal replacement drinks; meal

replacement and dietary supplement drink mixes; protein based, nutrient-dense meal replacement

bars; and pre-mixed nutritionally fortified beverages” and has been using the mark since at least as

early as 2001. A copy of United States trademark registration number 2,973,352 is attached hereto

as Exhibit B. A depiction of the MUSCLE MILK® pre-mixed, liquid nutritional product is attached

hereto as Exhibit C.

13.

CytoSport is also the owner of United States trademark registration number 2,809,666

for the mark MUSCLE MILK for use in connection with “nutritional supplements” and has been

using the mark since at least as early as October 1999. A copy of United States trademark

registration umber 2,809,666 is attached hereto as Exhibit D.

14.

Upon information and belief, Vital Pharmaceuticals has developed a pre-mixed,

liquid nutritional supplement product using the mark MUSCLE POWER. A depiction of the product

developed by Vital Pharmaceuticals using the MUSCLE POWER mark is attached hereto as Exhibit

E.

/ / /

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CYTOSPORT’S SECOND AMENDED COMPLAINT


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15.

Upon information and belief, Vital Pharmaceuticals is marketing and promoting and

otherwise using in commerce its MUSCLE POWER mark in association with a pre-mixed, liquid

nutritional supplement in California and throughout the United States.

16.

The MUSCLE POWER product appears to be virtually identical to CytoSport’s pre-

mixed, liquid MUSCLE MILK® product. The two products would directly compete with one

another. Both products are sold in liquid form and both are used primarily as nutritional protein

supplements.

Both products utilize virtually identical packaging and package markings.

Additionally, both products would be sold through identical channels of trade and to an identical

class of consumers. In many instances, these products are displayed side by side on the internet and

on retail store shelves.

17.

By adopting the MUSCLE POWER mark and associated trade dress on a nearly

identical product, Vital Pharmaceuticals is clearly attempting to trade on the significant good will in

the marketplace associated with the MUSCLE MILK® trademark and associated trade dress.

18.

Because the trade dress of the respective products is virtually identical and the

underlying products are identical, CytoSport believes that the use of MUSCLE POWER by Vital

Pharmaceuticals on identical products is likely to cause confusion, or to cause mistake, or to deceive

consumers in light of CytoSport’s registered MUSCLE MILK® trademark and associated trade

dress.

19.

Upon information and belief, Vital Pharmaceuticals has promoted and marketed its

MUSCLE POWER product in a manner that asserts that the MUSCLE POWER mark is registered

with the United States Patent and Trademark Office. See, Exhibit E attached hereto.

20.

Upon information and belief, the MUSCLE POWER mark was not registered with

the United States Patent and Trademark Office when Vital Pharmaceuticals began promoting the

MUSCLE POWER product as having a trademark registration.

21.

In addition to the above, Vital Pharmaceuticals has advertised and/or is advertising its

MUSCLE POWER product by comparing the nutritional content of its MUSCLE POWER product

/ / /

CYTOSPORT’S SECOND AMENDED COMPLAINT


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with the nutritional content of CytoSport’s MUSCLE MILK® product. See, Exhibit F attached

hereto.

22.

Specifically, Vital Pharmaceuticals’ advertisement states that the MUSCLE POWER

product has 600% less sugar, 183% less fat, and 89% less carbs than the MUSCLE MILK® product.

23.

Each of the statements in Vital Pharmaceuticals’ advertising for MUSCLE POWER

referenced in paragraph 22 above is literally false and/or false and misleading.

24.

Upon information and belief, Vital Pharmaceuticals is engaged in business in the

State of California, advertises and solicits business within the State of California, travels to

California by way of salespeople, visits potential customers in California, and generates a substantial

percentage of its national sales in California.

25.

CytoSport asserts that if Vital Pharmaceuticals is allowed to manufacture, promote

and sell its MUSCLE POWER product with the associated trade dress, unfair competition would

result because there is a likelihood of confusion or mistake as to the affiliation, association, or

connection of the parties’ respective products.

26.

Further, CytoSport contends that Vital Pharmaceuticals’ use of the MUSCLE

POWER mark and its associated trade dress with its MUSCLE POWER product is so close to

CytoSport’s use of MUSCLE MILK® and its associated trade dress that Vital Pharmaceuticals’ use

of the MUSCLE POWER mark will dilute CytoSport’s MUSCLE MILK® trademark.

27. Moreover, CytoSport contends that Vital Pharmaceuticals’ advertising is literally

false and/or false or misleading and likely to confusing consumers, causing injury in fact and

economic damage to CytoSport.

(Unfair Competition, Trade Dress Infringement – 15 U.S.C. §1125)

FIRST CAUSE OF ACTION

28.

CytoSport hereby incorporates by this reference each and every preceding allegation

as if set forth fully herein.

29.

CytoSport markets and sells a pre-mixed, liquid nutritional supplement that uses in

commerce the MUSCLE MILK® trademark with its associated trade dress. The MUSCLE MILK®

trademark is famous and the associated trade dress is distinctive and has acquired secondary

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meaning such that prospective purchasers associate the distinctive trade dress with CytoSport’s

MUSCLE MILK® product.

30.

Upon information and belief, Vital Pharmaceuticals markets and promotes a pre-

mixed, liquid nutritional supplement that uses in commerce the MUSCLE POWER mark with its

associated trade dress.

31.

Based on Vital Pharmaceuticals’ use in commerce of the MUSCLE POWER mark in

connection with its MUSCLE POWER product, the trade dress used by Vital Pharmaceuticals in

association with the MUSCLE POWER product is likely to cause confusion with the trade dress

associated with CytoSport’s MUSCLE MILK® product and result in unfair competition in violation

of 15 U.S.C. §1125(a)(1)(A).

32.

CytoSport has suffered actual damages as a result of unfair competition and trade

dress infringement by Vital Pharmaceuticals in an amount to be proven at trial. Additionally, the

harm to CytoSport arising from these acts by Vital Pharmaceuticals is not fully compensable by

money damages. CytoSport has suffered, and continues to suffer, irreparable harm that has no

adequate remedy at law and that will continue unless this unfair conduct by Vital Pharmaceuticals is

preliminarily and permanently enjoined.

33.

Since Vital Pharmaceuticals’ MUSCLE POWER product is directly competing with

the immensely popular MUSCLE MILK® products, Vital Pharmaceuticals was surely familiar with

the MUSCLE MILK® trademarks and associated products and Vital Pharmaceuticals’ use of the

MUSCLE POWER mark with its associated trade dress is a willful and intentional attempt to trade

off CytoSport’s MUSCLE MILK® product with its associated trade dress. As a result, CytoSport is

further entitled to an award of costs and attorneys’ fees.

SECOND CAUSE OF ACTION

(Dilution - 15 U.S.C. §1125 and Cal. Bus. & Prof. Code §14247)

34.

CytoSport hereby incorporates by this reference each and every preceding allegation

as if set forth fully herein.

35.

CytoSport markets and sells a pre-mixed, liquid nutritional supplement that uses in

commerce the MUSCLE MILK® trademark with its associated trade dress. The MUSCLE MILK®

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trademark is famous and the associated trade dress is distinctive and has acquired secondary

meaning such that prospective purchasers associate the distinctive trade dress with CytoSport’s

MUSCLE MILK® product.

36.

Upon information and belief, Vital Pharmaceuticals markets and promotes a pre-

mixed, liquid nutritional supplement that uses in commerce the MUSCLE POWER mark with its

associated trade dress.

37.

Based on Vital Pharmaceuticals’ use in commerce of the MUSCLE POWER mark

with its MUSCLE POWER product, the trade dress used by Vital Pharmaceuticals in association

with the MUSCLE POWER product is likely to cause confusion with the famous and distinctive

trade dress associated with CytoSport’s MUSCLE MILK® product and result in dilution in violation

of 15 U.S.C. §1125(c) and Cal. Bus. & Prof. Code §14247.

38.

CytoSport has suffered actual damages as a result of dilution by Vital

Pharmaceuticals in an amount to be proven at trial. Additionally, the harm to CytoSport arising from

these acts by Vital Pharmaceuticals is not fully compensable by money damages. CytoSport has

suffered, and continues to suffer, irreparable harm that has no adequate remedy at law and that will

continue unless this unfair conduct by Vital Pharmaceuticals is preliminarily and permanently

enjoined.

39.

Since Vital Pharmaceuticals’ MUSCLE POWER product is directly competing with

the immensely popular MUSCLE MILK® products, Vital Pharmaceuticals was surely familiar with

the MUSCLE MILK® trademarks and associated products and Vital Pharmaceuticals’ use of the

MUSCLE POWER mark with its associated trade dress is a willful and intentional attempt to dilute

CytoSport’s MUSCLE MILK® trademarks with its associated trade dress. As a result, CytoSport is

further entitled to an award of costs and attorneys’ fees.

THIRD CAUSE OF ACTION

(Unfair Competition – 15 U.S.C. §1125)

40.

CytoSport hereby incorporates by this reference each and every preceding allegation

as if set forth fully herein.

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CYTOSPORT’S SECOND AMENDED COMPLAINT


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41.

CytoSport markets and sells a pre-mixed, liquid nutritional supplement that uses in

commerce the MUSCLE MILK® trademark with its associated trade dress. The MUSCLE MILK®

trademark is famous.

42.

Upon information and belief, Vital Pharmaceuticals markets and promotes a pre-

mixed, liquid nutritional supplement that uses in commerce the MUSCLE POWER mark.

43.

Upon information and belief, Vital Pharmaceuticals used in commerce the MUSCLE

POWER mark with a symbol suggesting that the MUSCLE POWER mark was registered with the

U.S. Patent and Trademark Office, specifically, the ® symbol.

44.

Upon information and belief, the MUSCLE POWER mark was not registered with

the U.S. Patent and Trademark Office prior to its promotion of its MUSCLE POWER mark.

45.

Vital Pharmaceuticals’ use of the MUSCLE POWER mark with the registration

symbol ® is likely to cause confusion, or to cause mistake, or to deceive as to the connection or

association of Vital Pharmaceuticals with the U.S. Patent and Trademark Office, and results in unfair

competition in violation of 15 U.S.C. §1125(a)(1).

46.

Further, Vital Pharmaceuticals’ use of its MUSCLE POWER mark with the

registration symbol ® is a violation of the Lanham Act’s unfair competition statute.

47.

Vital Pharmaceuticals’ use of the ® symbol with its MUSCLE POWER mark was a

willful and intentional attempt to deceive or misrepresent a connection or characteristic of the

MUSCLE POWER product. As a result, CytoSport is entitled to an award of costs and attorneys’

fees.

FOURTH CAUSE OF ACTION

(Unfair Competition – Cal. Bus. & Prof. Code §17200)

48.

CytoSport hereby incorporates by this reference each and every preceding allegation

as if set forth fully herein.

49.

CytoSport markets and sells a pre-mixed, liquid nutritional supplement that uses in

commerce the MUSCLE MILK® trademark with its associated trade dress. The MUSCLE MILK®

trademark is famous and the associated trade dress has acquired secondary meaning such that

/ / /

CYTOSPORT’S SECOND AMENDED COMPLAINT


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prospective purchasers associate the distinctive trade dress with CytoSport’s MUSCLE MILK®

product.

50.

Upon information and belief, Vital Pharmaceuticals markets and promotes a pre-

mixed, liquid nutritional supplement that uses in commerce the MUSCLE POWER mark with its

associated trade dress.

51.

Based on Vital Pharmaceuticals’ use in commerce of the MUSCLE POWER mark in

connection with its MUSCLE POWER product, the trade dress used by Vital Pharmaceuticals in

association with the MUSCLE POWER product is likely to cause deception or confusion with the

famous trade dress associated with CytoSport’s MUSCLE MILK® product and result in unfair

competition.

52.

Vital Pharmaceuticals’ use of the trade dress associated with its MUSCLE POWER

product is likely to cause deception or confusion with CytoSport’s trade dress associated with its

MUSCLE MILK® product.

53.

CytoSport has suffered actual damages as a result of unfair competition by Vital

Pharmaceuticals in an amount to be proven at trial. Additionally, the harm to CytoSport arising from

these acts by Vital Pharmaceuticals is not fully compensable by money damages. CytoSport has

suffered, and continues to suffer, irreparable harm that has no adequate remedy at law and that will

continue unless this unfair conduct by Vital Pharmaceuticals is preliminarily and permanently

enjoined.



FIFTH CAUSE OF ACTION

(Trademark Infringement – 15 U.S.C. §1114(a))

54.

CytoSport hereby incorporates by this reference each and every preceding allegation

as if set forth fully herein.

55.

The mark MUSCLE POWER as used by Vital Pharmaceuticals is similar to

CytoSport’s registered mark, MUSCLE MILK®, in meaning and overall impression and is similar in

appearance and pronunciation. Additionally, the goods sold in connection with the mark MUSCLE

POWER are virtually identical to goods sold by CytoSport under the MUSCLE MILK® brand. As

such, the use of the mark MUSCLE POWER by Vital Pharmaceuticals in connection with its goods

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and services is likely to cause confusion, or to cause mistake, or to deceive consumers in light of

CytoSport’s federally registered MUSCLE MILK® trademarks.

56.

Through these activities, Vital Pharmaceuticals has infringed CytoSport’s trademark

rights under the Lanham Act, 15 U.S.C. §1114(a).

57.

CytoSport has suffered actual damages, including lost profits, as a result of trademark

infringement by Vital Pharmaceuticals in an amount to be proven at trial. Additionally, the harm to

CytoSport arising from these acts by Vital Pharmaceuticals is not fully compensable by money

damages. CytoSport has suffered, and continues to suffer, irreparable harm that has no adequate

remedy at law and that will continue unless this unfair conduct by Vital Pharmaceuticals is

preliminarily and permanently enjoined.

58.

Since Vital Pharmaceuticals’ product competes directly with the immensely popular

MUSCLE MILK® products, Vital Pharmaceuticals was surely familiar with the MUSCLE MILK®

trademarks and Vital Pharmaceuticals’ continued unauthorized use of the MUSCLE POWER mark

is willful and intentional. As a result, CytoSport is further entitled to treble damages and an award

of costs and attorneys’ fees.

SIXTH CAUSE OF ACTION

(Trademark Infringement – Cal. Bus. & Prof. Code §14245)



59.

CytoSport hereby incorporates by this reference each and every preceding allegation

as if set forth fully herein.

60.

The mark MUSCLE POWER, as used by Vital Pharmaceuticals, is similar to

CytoSport’s registered mark, MUSCLE MILK® in meaning and overall impression and is similar in

appearance and pronunciation. Additionally, the goods sold in connection with the mark MUSCLE

POWER are virtually identical to goods sold by CytoSport under the MUSCLE MILK® brand. As

such, the use of the mark MUSCLE POWER by Vital Pharmaceuticals in connection with its goods

and services is likely to cause confusion, or to cause mistake, or to deceive consumers in light of

CytoSport’s federally registered MUSCLE MILK® trademarks.

61.

Through these activities, Vital Pharmaceuticals has infringed CytoSport’s trademark

rights under Cal. Bus. & Prof. Code §14245 and under the common law.

CYTOSPORT’S SECOND AMENDED COMPLAINT


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62.

CytoSport has suffered actual damages, including lost profits, as a result of trademark

infringement by Vital Pharmaceuticals in an amount to be proven at trial. Additionally, the harm to

CytoSport arising from these acts by Vital Pharmaceuticals is not fully compensable by money

damages. CytoSport has suffered, and continues to suffer, irreparable harm that has no adequate

remedy at law and that will continue unless this unfair conduct by Vital Pharmaceuticals is

preliminarily and permanently enjoined.

63.

Since Vital Pharmaceuticals’ product competes directly with the immensely popular

MUSCLE MILK® products, Vital Pharmaceuticals was surely familiar with the MUSCLE MILK®

trademarks and Vital Pharmaceuticals’ continued unauthorized use of the MUSCLE POWER mark

is willful and intentional. As a result, CytoSport is further entitled to treble damages and an award

of costs and attorneys’ fees.

(False Advertising – 15 U.S.C. §1125(a) and Cal. Bus. & Prof. Code §§ 17200, 17500)

SEVENTH CAUSE OF ACTION



64.

CytoSport hereby incorporates by this reference each and every preceding allegation

as if set forth fully herein.

65.

Vital Pharmaceuticals has advertised and/or is advertising its MUSCLE POWER

product by comparing the nutritional content of its MUSCLE POWER product with the nutritional

content of CytoSport’s MUSCLE MILK® product.

66.

Specifically, Vital Pharmaceuticals’ advertisement states that the MUSCLE POWER

product has 600% less sugar, 183% less fat, and 89% less carbs than MUSCLE MILK®.

67.

Each of the statements in Vital Pharmaceuticals’ advertising referenced in paragraph

66 above is literally false and/or false and misleading.

68.

Vital Pharmaceuticals has caused the foregoing advertisement, as well as, upon

information and belief, other advertisements that are literally false, and/or false and misleading and

likely to confuse consumers, to enter interstate commerce.

68.

As a result of Vital Pharmaceutical’s advertisements, CytoSport has suffered injury in

fact.

/ / /

CYTOSPORT’S SECOND AMENDED COMPLAINT


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69.

CytoSport has also suffered actual damages, including lost profits, as a result of Vital

Pharmaceuticals’ false advertising in an amount to be proven at trial. Additionally, the harm to

CytoSport arising from these acts by Vital Pharmaceuticals is not fully compensable by money

damages. CytoSport has suffered, and continues to suffer, irreparable harm that has no adequate

remedy at law and that will continue unless this conduct by Vital Pharmaceuticals is preliminarily

and permanently enjoined.

70.

Upon information and belief, Vital Pharmaceuticals’ false statements were willful and

intentional. As a result, CytoSport is further entitled to an award of costs and attorneys’ fees.

(Cancellation of U.S. Trademark Reg. Nos. 3,551,076 and 3,547,541 – 15 U.S.C. §1119)

EIGHTH CAUSE OF ACTION

71.

CytoSport hereby incorporates by this reference each and every preceding allegation

as if set forth fully herein.

72.

The mark MUSCLE POWER as used by Vital Pharmaceuticals is similar to

CytoSport’s registered mark, MUSCLE MILK®, in meaning and overall impression and is similar in

appearance and pronunciation. Additionally, the goods sold in connection with the mark MUSCLE

POWER are virtually identical to goods sold by CytoSport under the MUSCLE MILK® brand. As

such, the use of the mark MUSCLE POWER by Vital Pharmaceuticals in connection with its goods

and services is likely to cause confusion, or to cause mistake, or to deceive consumers in light of

CytoSport’s federally registered MUSCLE MILK® trademarks.

73.

Accordingly, U.S. Trademark Reg. Nos. 3,551,076 and 3,547,541 for the mark

MUSCLE POWER should be cancelled.

WHEREFORE, it is respectfully requested that the Court enter a judgment in favor of

CytoSport as follows:



famous;



A.

That the Court enter judgment that CytoSport’s MUSCLE MILK® marks are

B.

That the Court enter judgment that the trade dress associated with CytoSport’s

MUSCLE MILK® pre-mixed, liquid nutritional supplement product is distinctive, is not functional,

and has acquired secondary meaning;

CYTOSPORT’S SECOND AMENDED COMPLAINT


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C.

That the Court enter judgment declaring that Vital Pharmaceuticals’ use of its





MUSCLE POWER mark with its associated trade dress in the United States is likely to cause

confusion with CytoSport’s trade dress associated with the MUSCLE MILK® product and results in

unfair competition and trade dress infringement in violation of the Lanham Act and Cal. Bus. &

Prof. Code §17200;



D.

That the Court enter judgment declaring that Vital Pharmaceuticals’ use of the

MUSCLE POWER mark with its associated trade dress will dilute CytoSport’s MUSCLE MILK®

trademarks with its associated trade dress in violation of the Lanham Act and Cal. Bus. & Prof. Code

§14247;



E.

That the Court enter judgment that Vital Pharmaceuticals’ use of its MUSCLE

POWER mark in the United States is likely to cause confusion with CytoSport’s MUSCLE MILK®

product and results in trademark infringement in violation of the Lanham Act;





F.

That the Court enter judgment that Vital Pharmaceuticals’ use of its MUSCLE

POWER mark in the United States is likely to cause confusion with CytoSport’s MUSCLE MILK®

product and results in trademark infringement in violation of Cal. Bus. & Prof. Code §14245;



G.

That the Court enter judgment that Vital Pharmaceutical’s comparative

advertisements constitute false advertising and/or unfair competition in violation of the Lanham Act

and Cal. Bus. & Prof. Code §17200 and/or §17500.



H.

That the Court enter judgment that U.S. Trademark Reg. Nos. 3,551,076 and

3,547,541 be cancelled.



I.

That the Court permanently enjoin Vital Pharmaceuticals from using in

commerce any combination of a mark and trade dress that competes unfairly with CytoSport’s

MUSCLE MILK® trademark with its associated trade dress;



J.

That the Court permanently enjoin Vital Pharmaceuticals from using in

commerce any combination of a mark and trade dress that dilutes CytoSport’s MUSCLE MILK®

trademark with its associated trade dress;



K.

That the Court permanently enjoin Vital Pharmaceuticals from using in

commerce any false advertising touching or relating to CytoSport’s MUCLE MILK products®.

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CYTOSPORT’S SECOND AMENDED COMPLAINT


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Case 2:08-cv-02632-JAM-GGH Document 41 Filed 03/19/09 Page 14 of 14

L.

That Vital Pharmaceuticals be ordered to pay damages to CytoSport in an





amount to be determined by this Court;



M.

That Vital Pharmaceuticals be ordered to pay CytoSport for corrective

advertising to mitigate Vital Pharmaceuticals false advertising in an amount to be determined by this

Court;



N

That Vital Pharmaceuticals be ordered to pay CytoSport’s reasonable

attorneys’ fees and costs for this action pursuant to the Lanham Act; and



O.

That CytoSport have such other and further relief as shall seem just and

proper to the Court.

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, CytoSport hereby demands a

Peter M. de Jonge
Gordon K. Hill
Jed H. Hansen
THORPE NORTH & WESTERN, L.L.P.



Mark M. Bettilyon
RAY QUINNEY & NEBEKER P.C.

-and-



MILLSTONE, PETERSON & WATTS, LLP
Attorneys at Law







-and-

jury trial on all claims and issues so triable.


DATED: March 18, 2009




















 
"conformed" signature (/s/) within this e-filed document.

MILLSTONE PETERSON & WATTS, LLP
Attorneys at Law







14

CYTOSPORT’S SECOND AMENDED COMPLAINT


By: ________/s/ Glenn W. Peterson___________



GLENN W. PETERSON



Attorneys for Plaintiff CytoSport, Inc.

I hereby attest that I have on file all holograph signatures for any signatures indicated by a