Home -> Law Blog Directory -> Consumer Law Blogs -> 43(B)log

Consumer Law

: 43(B)log

Delay proves monstrously fatal

By Rebecca Tushnet

Hansen Beverage Co. v. Vital Pharmaceutical, Inc., 2008 WL 5427601 (S.D. Cal.)

Hansen produces Monster energy drinks and other energy beverages, including the Hit Man ?energy shot.? Vital makes REDLINE Power Rush! 7-Hour Energy Boost, a 2-ounce energy shot. Monster sued, alleging that Vital?s ads claiming ?7 Hours of Pure Energy,? ?7 Hours of Sustained Energy,? and ?No Crash? were false.

The court found that Monster?s loss in an earlier case it brought precluded Monster?s argument that it was entitled to a presumption of irreparable harm (upon a finding of falsity). The court then found a factual dispute over falsity. Most generalizable finding: Monster?s delay in suing weighed against a preliminary injunction. Power Rush had been on the market since September 2007, and Monster sought the PI in September 2008. Monster argued that it only had reason to sue after discovering the falsity of the claims and investigating the market in July and August 2008. Nonetheless, the court took this as a concession that Monster knew about Power Rush for ?at least several months? before suing, ?regardless of its reasons for delay? (emphasis added). This bore against a finding of irreparable harm because it showed that Monster didn?t think Power Rush was a serious threat to its business for almost a year after it entered the market. Delays in requesting a PI, ?whether for months or years,? tend to negate irreparable harm.

Full post as published by 43(B)log on January 10, 2009 (boomark / email).