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Innovation Ventures, LLC v. N.V.E., Inc.

United States Court of Appeals for the Sixth Circuit
694 F.3d 723 (2012)


Innovation Ventures, LLC (plaintiff) manufactured a drink called “5-hour ENERGY.” N.V.E., Inc. (defendant) manufactured a drink called “6 Hour POWER.” In an action not involving N.V.E., Innovation brought a successful trademark suit against N2G Distributing, Inc., which had produced a drink called “6 Hour ENERGY.” The court in that proceeding ordered a recall of N2G’s product. In response to this legal victory, Innovation issued a notice to its distribution customers and retailers with the title “RECALL of ‘6 HOUR’ SHOT ORDERED.” The notice stated: “If you have any of the ‘6 Hour’ energy shots in your store(s) or warehouse(s) contact the product’s manufacturer or your distributor to return the product immediately.” The notice did not specifically name “6 Hour ENERGY” as the product that the court had recalled. Innovation sued N.V.E. for trademark infringement, but N.V.E. countersued for false advertising based on Innovation’s notice. N.V.E. sought to introduce evidence of countless phone calls it received from confused retailers in response to the notice. Many of these calls were from retailers who were trying to find out how to return “6 Hour POWER” drinks, even though the drink was not actually recalled. The district court excluded this evidence as hearsay and granted Innovation summary judgment on N.V.E.’s counterclaim. N.V.E. appealed.

Rule of Law


Holding and Reasoning (Boggs, J.)

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