## Facts

- Innovation Ventures, LLC (doing business as Living Essentials) marketed the “5-hour ENERGY” energy-shot drink.
- N.V.E., Inc. marketed a competing energy-shot product called “6 Hour POWER.”
- After obtaining a court-ordered recall in separate litigation involving a different “6 Hour” product, Living Essentials sent retailers and distributors a notice titled “RECALL of ‘6 HOUR’ SHOT ORDERED.”
- The notice instructed recipients to return “any of the ‘6 Hour’ energy shots” but did not clearly identify the recalled product as the other manufacturer’s “6 Hour ENERGY,” creating an alleged ambiguity as to whether “6 Hour POWER” was included.
- NVE asserted that retailers were confused by the notice and contacted NVE seeking to return “6 Hour POWER” products that had not been recalled.
- Living Essentials sued NVE in federal district court for Lanham Act trademark infringement based on NVE’s use of “6 Hour POWER.”
- NVE counterclaimed for (1) Lanham Act § 43(a) false advertising based on the recall notice and (2) monopolization/attempted monopolization under Sherman Act § 2.

## Issues

1. Whether summary judgment was proper on Living Essentials’ Lanham Act trademark infringement claim, including whether genuine disputes existed on likelihood of confusion between “5-hour ENERGY” and “6 Hour POWER.”
2. Whether summary judgment was proper on NVE’s Lanham Act § 43(a) false-advertising counterclaim based on the recall notice, including whether evidence of retailer confusion was improperly excluded as hearsay.
3. Whether summary judgment was proper on NVE’s Sherman Act § 2 counterclaim alleging exclusionary conduct and antitrust injury.

## Decision

- Reversed summary judgment for NVE on trademark infringement and remanded for further proceedings, holding the likelihood-of-confusion record was too closely balanced for summary judgment.
- Reversed summary judgment for Living Essentials on NVE’s false-advertising counterclaim and remanded, holding the recall notice could be found misleading and the retailer-confusion evidence was improperly excluded as hearsay.
- Affirmed summary judgment for Living Essentials on NVE’s Sherman Act § 2 counterclaim, holding NVE failed to show exclusionary conduct causing harm to competition or cognizable antitrust injury.

## Legal Principles

- A suggestive trademark is inherently distinctive and protectable; “5-hour ENERGY” was treated as suggestive rather than merely descriptive.
- Likelihood of confusion under the Lanham Act is typically assessed using multiple factors, and summary judgment is improper where the factors and evidence are closely balanced and require factfinding.
- A Lanham Act false-advertising claim may proceed where a statement, even if literally true in one respect, is misleading to a substantial segment of its audience in context.
- Out-of-court statements offered to show confusion or the effect of an advertisement on recipients, rather than for the truth of what the declarant asserted, are not hearsay under Federal Rule of Evidence 801(c).
- Misleading advertising or recall communications do not, without more, establish Sherman Act § 2 liability; antitrust claims require proof of exclusionary conduct and injury to competition, not merely harm to a rival.

## Conclusion

The Sixth Circuit required further proceedings on trademark infringement and false advertising because fact disputes existed over consumer/retailer confusion and the meaning conveyed by the recall notice, but it rejected the attempt to reframe the allegedly misleading notice as monopolization absent proof of exclusionary market harm.


Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723 (6th Cir. 2012)