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SportFuel, Inc. v. Pepsico, Inc.

United States District Court, N.D. Illinois, Eastern Division

June 14, 2018

SPORTFUEL, INC., Plaintiff,
v.
PEPSICO, INC., and THE GATORADE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE.

         SportFuel, Inc., which owns the registered trademark SPORTFUEL, sued PepsiCo, Inc. and its wholly-owned indirect subsidiary, The Gatorade Company (Gatorade) over Gatorade's use of the advertising slogan "Gatorade The Sports Fuel Company."[1] SportFuel asserts claims of trademark infringement, unfair competition, and false designation of origin under the Lanham Act, 15 U.S.C. §§ 1114, 1125(a) (counts 1 and 2), and parallel claims of trademark infringement and unfair competition under state statutory and common law (count 3). Gatorade has counterclaimed for the cancellation of SportFuel's trademark registration. Gatorade has moved to exclude the testimony and survey evidence of Kenneth Hollander and James Berger, SportFuel's experts, and for summary judgment on all counts of the complaint. For the reasons stated below, the Court grants Gatorade's motion for summary judgment and denies as moot the motions to exclude SportFuel's expert testimony and survey evidence.

         Background

         The following facts are taken from the parties' statements of undisputed facts and the exhibits attached to or referenced by those statements.

         SportFuel, Inc. is a Chicago-based sports nutrition and wellness consulting firm. Julie Burns, a clinical nutritionist and registered dietician, founded SportFuel in 1993. In addition to being the Chicago Blackhawks' team nutritionists and providing personalized performance nutrition consulting services for individuals, SportFuel also sells a variety of SportFuel-branded dietary supplement powders and capsules. SportFuel owns two registered trademarks for the name SPORTFUEL: one for "food nutrition consultation, " "nutrition counseling, " and "providing information about dietary supplements and nutrition" (Reg. No. 3, 495, 513) and another for "dietary supplements" and "sports drinks enhanced with vitamins" (Reg. No. 4, 832, 297). Pl.'s Statement of Additional Facts (SAF), Ex. 13, at 32, 68. SportFuel's Burns served on the Gatorade Sports Science Institute's Sports Nutrition Advisory Board in her capacity as a nutritionist from 1995 to 2003.

         Although Gatorade continues to sell its well-known sports drinks, it now sells a wider variety of food and beverage products, including bars, chews, protein bars, protein shakes, protein powders, and gels. Gatorade also offers its Gx Personalized Hydration System-in which scientists create personalized formulas and hydration plans for athletes based on an analysis of their sweat-to "select professional athletic teams." Pl.'s Resp. to Defs.' Statement of Undisputed Material Facts (SUMF) ¶ 4.

         Gatorade has used variations of the word "fuel" in its marketing for close to twenty years. See, e.g., Mazur Decl., Ex. C (Gatorade offers "tips on how to avoid dehydration, by rehydrating, so you can go stronger, last longer, respect the heat, stay cooled and fueled"); Mazur Decl., Ex. D (Gatorade keeps athletes "refueled, rehydrated and at the top of their game"). Gatorade began using the phrase "sports fuel" internally in 2012. Internal Gatorade marketing strategy presentations from 2012 onward repeatedly reference "Sports Fuel" products, which the presentations describe as "[i]tems specifically designed to improve athletic performance." Mazur Decl., Ex. H, at 3; see also Mazur Decl., Ex. K, at 4 (differentiating sports fuel products from sports nutrition products). These marketing presentations also refer to brands and companies that Gatorade has identified as competitors in the "Sports Fuel" market. See Mazur Decl., Ex. H, at 5; Mazur Decl., Ex. G, at 6. As part of Gatorade's self-described effort to "rebrand itself as 'Gatorade - The Sports Fuel Company, '" the company began using the slogan "Gatorade The Sports Fuel Company" in nationwide media in 2015. Mazur Decl., Ex. K, at 3. The goal of this rebranding effort was to "position Gatorade as THE fueling company that is continually innovating to create sports fuel solutions to help athletes perform at their best." Id. Gatorade was aware of SportFuel's trademarks before it began using the slogan.

         Gatorade registered GATORADE THE SPORTS FUEL COMPANY as a trademark in 2016 (Reg. No. 5, 025, 026), but it disclaimed the exclusive right to use "The Sports Fuel Company." See Mazur Decl., Ex. L, at 2. According to Andrew Hartshorn, the chief marketing officer and vice president of Gatorade, Gatorade uses its Gatorade house mark and / or the following G-bolt design mark on all of its packaging and advertisements:

         (Image Omitted)

         See dkt. no. 59, Hartshorn Decl. in Supp. of Mot. for Summ. J. (Hartshorn Decl.) ¶ 25. Hartshorn also stated that Gatorade does not use the slogan "Gatorade The Sports Fuel Company" on any product packaging or labeling.[2] See Id. ¶ 20.

         SportFuel filed this suit against Gatorade and PepsiCo in August 2016. As previously noted, SportFuel has alleged trademark infringement, unfair competition, and false designation of origin in violation of the Lanham Act, and it also asserts claims of trademark infringement and unfair competition under state statutory and common law. Gatorade has moved to exclude SportFuel's expert testimony and survey evidence regarding the likelihood of consumer confusion resulting from Gatorade's use of the advertising slogan "Gatorade The Sports Fuel Company." Gatorade has also moved for summary judgment.

         Discussion

         When considering a motion for summary judgment, the Court views the record in the light most favorable to the non-moving party, drawing reasonable inferences in favor of that party. See Sorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015). A grant of summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). If "the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " a genuine issue of material fact exists, and summary judgment must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         Gatorade has moved for summary judgment on all counts of the complaint on two separate grounds. Gatorade first argues that summary judgment is warranted because SportFuel has failed to present evidence from which a reasonable jury could find likelihood of confusion, a necessary element of all of SportFuel's claims. Gatorade also contends that its use of the term "Sports Fuel" in the slogan "Gatorade The Sports Fuel Company" is a fair use protected by the Lanham Act. Because, as explained below, the Court ...


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