n May 2006, Fort Lauderdale, Florida based Vital Pharmaceuticals, Inc. (“VPX”) brought a lawsuit against Walterboro, South Carolina based American Body Building Products, LLC (“ABB”), for trade dress infringement and unfair competition. ABB is a wholly owned subsidiary of Optimum Nutrition, Inc, of Aurora, Illinois. VPX alleged that it has proprietary rights in the bottle in which it markets and sells its ready to drink sports nutritional beverage product “Redline” and that ABB was violating those rights by marketing and selling its competing “Speed Shot” product in a similar bottle.

After a week long trial in the United States District Court in Palm Beach County, Florida, which commenced on January 8, 2007, the court ruled in favor of ABB and issued a 28 page order holding: that the trade dress claimed by VPX, consisting predominantly of a standard, round shouldered 8 oz. bottle, was not inherently distinctive, had not achieved any secondary meaning and was primarily functional. The court also held that there was no likelihood that consumers would be confused as to the source of the products. The court also noted that the legal action initiated by VPX against ABB appeared “to be nothing but a thinly-veiled effort to stifle legitimate competition” and invited further briefing on the subject by the attorneys for both sides. On Friday, February 23, 2007, the district judge issued a further ruling finding that VPX acted in bad faith, brought the lawsuit for anticompetitive reasons and that ABB is entitled to an award of its attorneys’ fees and costs in the case.