Innovation Ventures, LLC d/b/a Living ESSENTIALS, v. N.V.E., INC.

A jury resolved an eight-year dispute in favor of Innovation Ventures LLC d/b/a Living Essentials (“LE”), awarding LE a multi-million-dollar jury verdict for trademark infringement and rejecting Defendant N.V.E., Inc.’s (“NVE”) false advertising counterclaim entirely.

LE, a Michigan-based company, manufactures the very popular 5-hour Energy® shots. In 2008, LE sued NVE in the U.S. District Court for the Eastern District of Michigan asserting, among other things, that NVE’s adoption of “6-hour Power” for an energy shot created a likelihood of confusion with the prior 5-hour Energy trademark. NVE responded with numerous counterclaims, including a claim of false advertising based on LE’s notice announcing the court-ordered recall of another “6 Hour” energy shot (called “6 Hour Energy”) that mimicked not only the 5-hour Energy trademark but also its packaging trade dress. At the close of discovery, LE and NVE filed cross-motions for summary judgment. The district court granted summary judgment to both parties, dismissing all of the asserted claims and counterclaims.

On appeal, finding that there were genuine issues of material fact that had to be resolved by a jury and not the district court, the Sixth Circuit reversed the lower court’s dismissal of LE’s trademark infringement claim and NVE’s counterclaim of false advertising.

In 2016, the parties presented their cases during a four-week, highly contested jury trial; more than 20 witnesses testified. In the end, the jury awarded LE $10.6 million in damages and an additional $11.5 million for disgorgement of profits NVE made on the infringing 6-hour Power products. Additionally, the jury rejected NVE’s $60 million false advertising claim. LE’s verdict confirmed its place as an innovative leader in the energy shot market and the value of its investment in building a strong brand. The verdict is also believed to be the largest trademark verdict rendered in Michigan.

Brooks Kushman shareholders Marc Lorelli, Mark A. Cantor, Chanille Carswell, and Tom Cunningham led the team that resulted in this favorable decision for Innovation Ventures and all other parties involved.