Energy shot dispute confuses retailers

By Matt Casey, BevNET.com Staff Writer

A legal dispute between rival companies in the increasingly litigious energy shot category has confused retailers and left at least one company not involved in the dispute to take measures to keep its product on shelves.

Living Essentials, makers of the category’s first-mover 5 Hour Energy, sent a letter to retailers saying that they won an injunction against a “’6 Hour’ energy shot that closely mimicked 5-Hour Energy.” The letter continued to say that U.S. District Court ordered the immediate recall of the imposter product.

But the letter did not specify which “6 Hour” shot, leaving retailers unsure of which products claiming six hours of energy needed to be removed. Living Essentials’ dispute is with Alpha Performance Labs/N2G Distributing Inc., according to a March, 7 court filing, which produces a product called 6 Hour Energy. The 6 hour product closely mimics the appearance of the 5-hour product. Both feature orange backgrounds with dark, rocky foregrounds and a silhouetted figure hiking or running.

That factor – the label – is what led to the recall, according to N2G owner Jeff Diehl, and the product could return under the same name, but with different package graphics.

“We’re still deciding that at this time,” Diehl said.

The injunction does not affect any other energy shots – something that BDI Marketing, producers of Mini Thin Rush 6 Hour Energy, clarified in a letter to retailers. The company included an image of the rival products (seen at right) and clearly labeled the product that should be removed from shelves.

Carl Sperber, Living Essentials’ vice president of marketing, said the company tried to be as clear and concise as possible when informing retailers of the recall. Sperber said the company did not intend to snare other products with the letter, but “We didn’t ask for competitors to so closely mimic our name and our look that it caused confusion in the marketplace.”

That mimicry, he added, is why the company has filed lawsuits – including one against 6 Hour Power. Sperber said he did not know if the company planned to take action against BDI Marketing for their Mini Thin Rush 6 Hour Energy.

Asked if BDI Marketing would seek legal action against Living Essentials for sending a letter so vague as to potentially implicate the wrong product, Emilie Myers, head of product development, said “We have no comment at this time.”

Source: BevNET.com Staff