Vitaminwater vs. Vitaminshampoo

They say that the human body is 65 percent water. In my case, make that 65 percent vitaminwater…the multi-v/lemonade variety, specifically. It's my drink of choice. So imagine my excitement when I’m flipping through the October issue of Allure Magazine and come across an advert for vitaminshampoo. “Think of it as an energy drink for your hair,” says the tagline.

So Glacéau makes shampoo now? Hells yeah, right? Wrong. After my initial excitement (and an impromptu happy dance), I did a little research into this new line of hair care products and discovered that despite the name, similar packaging and the label’s indistinguishable typography, vitaminshampoo is not affiliated with Glacéau. Rather, these shampoos and conditioners are products of Vogue International. And to say that Glacéau isn’t happy about it would be a gross understatement.

According to Managing Intellectual Property, Glacéau recently secured a temporary restraining order against Vogue International, alleging trade dress infringement, false designation of origin, trade dress dilution, deceptive acts and practices and unfair competition. Counsel for Vogue International argued that because vitaminwater and vitaminshampoo are different classes of goods, there can be “no likelihood of confusion.”

Judge Lewis Kaplan, however, disagreed. “There are earmarks of bad faith all over the place,” he said. “It is inconceivable to me that the defendant could possibly have developed this trade dress that the defendant is using without an attempt to go at least as close to the line as it thought it could get and, in all likelihood, well over the line of imitating the plaintiff’s.”

“Looking at the array of the defendant’s bottles next to the array of the plaintiff’s bottles with colored liquid in them, it seems reasonably clear that any normal consumer would be confused, the impression would be that the products are from the same source,” Judge Kaplan continued.

Vogue International’s first order of business, since the temporary restraining order was granted, has been the tweaking of vitaminshampoo’s label. Compare the old label (above) to the new label (left), as seen on the vitaminshampoo website.

The temporary restraining order has been extended through the end of the year and negotiations between Glacéau and Vogue International are underway…though this legal tug-of-war is far from (vitamin)water under the bridge.