Last week, the company Vital Pharmaceuticals, Inc. (or VPX Sports/VPX), known for their highly popular Bang Energy Drinks, is suing Monster Energy Company, known for drinks of the same name, for trade dress infringement. Monster Energy recently released new lines of energy drinks called REIGN and REIGN INFERNO. However, VPX believes that the product design of these lines are confusingly similar to energy-drink consumers.

To put it simply, the concept of trade dress is meant to describe the design or “look-and-feel” of a product’s packaging as to create associations with a particular company or brand. For example, you may think of Coca-Cola based on their bright-red aluminum cans with its all-white lettering and the display of its cursive, white logo. Companies may bring suits regarding trade dress infringement if they believe another companies designs are confusingly similar to their previously distributed packaging, causing consumers to believe that the products are somehow related when they are not.

As described in the complaint filed in California’s Central District Court, since October 2015, BANG energy drinks have utilized very specific design characteristics on aluminum cans to present their brand to consumers, including:

(1)  a black background with contrasting, bold (i.e. brightly-colored) design for the rest of the can; (2) a large logo in the same bold (i.e. bright) color as the rest of the can covering the middle/top portion of the can; (3) the product name in the same bold (i.e. bright) color as the rest of the can covering the middle/bottom portion of the can; (4) a flavor designation in ALL CAPS in the same bold (i.e. bright) color as the rest of the can appearing along the bottom portion of the can; and (v5 a solid-colored banner covering the top portion of the can in the same bold (i.e. bright) color as the rest of the can.

VPX also notes that due to their high selection of varying drink flavors, each one bares a unique, bright, and bold color-scheme to designate their differences. For example, the Cotton Candy flavor uses a light pink scheme, while the Sour Heads flavor depicts a neon-green color scheme. VPX and the BANG energy drink brand argue that these aesthetic choices for their trade dress are both non-functional and inherently distinctive, and that a lot of time and effort has been put into designing, marketing, and promoting these products.

Meanwhile, Monster Energy officially began distributing their REIGN energy drink line back in March of 2019. VPX made a note in their complaint that REIGN is clearly meant to serve as an alternative to BANG energy drinks due to their similarity in containing no sugar, carbs, or calories. More importantly, they emphasized how the two products – BANG and REIGN – are “nearly identical” and “certainly confusingly similar” when placed in side-by-side comparisons.

When looking at the image above, one can see the strikingly similar design choices made by both companies. Both share black backgrounds to emphasize the bright, bold colors represented in the logos, brand names, and uppercase lettering on the cans. Furthermore, it is more than suspicious that REIGN’s corresponding color choices almost directly align with those of BANG’s. The most obvious difference between the two brands involves the logo design, i.e. BANG includes a lowercase “b” with cross-hairs in the center, while REIGN includes a knights helmet with a crown, similar to the style of an “m” to represent the company name, Monster Energy. Nevertheless, it’s reasonable not just to see the drink lines as similar, but to mistake one drink for another.

VPX also explains that Monster Energy’s most recent product development, REIGN INFERNO, bears trade dress that could also easily confuse consumers as to its origins. Further, they contend that by placing REIGN INFERNO drinks directly next to BANG energy drinks in vending machines, a customer could reasonably assume that the two lines are interconnected or originate from the same source.

VPX is suing for federal trade dress infringement and unfair competition, including state laws involving the same. Only time will tell how this case will play out for these major energy drink companies and who will “reign” supreme.

Author, Shelby Shilatz-Lewis, is going into her third year at Florida State University College of Law with an interest in intellectual property and entertainment law. She is currently a legal intern with Lee Law, PLLC.