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

After winning a trademark suit against a different company (N2G) over its "6 Hour ENERGY" drink and securing a court-ordered recall of that product, Innovation Ventures (plaintiff), maker of "5-hour ENERGY," issued a customer notice titled "RECALL of '6 HOUR' SHOT ORDERED" instructing retailers to return "the '6 Hour' energy shots" without specifically naming which product was actually recalled. Competitor N.V.E. (defendant), maker of the unrelated "6 Hour POWER" drink (never recalled), counterclaimed for false advertising, offering evidence of numerous confused retailer calls asking how to return "6 Hour POWER" products; the district court excluded this evidence as hearsay and granted Innovation summary judgment on the counterclaim.