The Sixth Circuit yesterday breathed new life into competing allegations of trademark infringement and false advertising related to the “5-hour ENERGY” energy shot and the “6 Hour POWER” energy shot.  The district court had granted summary judgment dismissing the trademark infringement claim, concluding that there was no genuine issue as to the  likelihood of confusion between the two marks.  The Sixth Circuit reversed, noting that the almost evenly balanced 4-3 split of the factors relevant to likelihood of confusion countenanced against summary judgment, that the district court improperly weighed the evidence, and that summary judgment is disfavored in trademark cases due to their factual nature.   Innovation Ventures, LLC v N.V.E., Inc. (Case Nos. 10-2353 and 2355) (PDF).  The Court also reversed the grant of summary judgment dismissing the counterclaim for false advertising, concluding that a jury question existed as to whether  a recall notice sent by the manufacturer of the 5-hour ENERGY energy shot relating to a different 6-Hour energy shot was misleading and intended to deceive.  Notably, the Sixth Circuit rejected a hearsay argument, stating that a strict application of the rules of evidence to establish customer confusion would place “too heavy a burden” on the manufacturer of the 6 Hour POWER manufacturer and that the significant number of calls received after the recall notice was sent created a jury issue.

Though surviving summary judgment, it remains to be seen whether either party’s claims have enough energy to make it across the finish line to a verdict in their favor.