WESTON, Fla., May 23, 2019 (GLOBE NEWSWIRE) -- On May 23, 2019, "VPX/Bang Energy makes the following announcement regarding an ongoing legal case"

A Dutch court roundly rejected claims by Monster Energy Limited (“Monster”) against Vital Pharmaceuticals, Inc., d/b/a VPX Sports (“VPX”), its European subsidiary (Bang Energy B.V. or “Bang EU”), and its CEO (Jack Owoc), while denying Monster’s request to ban BANG® in Europe and throughout the world. Not surprisingly, the court called Monster the losing party and ordered Monster to pay VPX, Bang EU, and Jack Owoc’s attorneys’ fees and legal costs.

Yet, always playing the spin game with consumers and its investors, days after the court’s ruling, Monster, among other things, issued a press releases hailing [1] the legal ruling via public statements that provide a false and misleading presentation of the facts. Based only on Monster’s statements, one would think Monster won the case, when, in fact, Monster lost.

Anyone who reads the actual ruling and court filings will see right through Monster’s falsehoods and deception. Or, here are the unadulterated facts.

The Dutch Court Rejected All Relief Requested by Monster.

Pursuant to a Writ of Summons dated March 29, 2019, filed in the District Court, Amsterdam, The Netherlands, seeking preliminary relief against VPX, Bang EU, Jack Owoc, and three third-party distributors of EU BANG® energy drinks, Monster sought 15 separate forms of relief, which are set forth as follows and linked below:.

Relief Requested by Monster Against VPX, Bang EU, and Jack OwocSourceResult
Order to cease and desist, within 24 hours after service of the judgment, allegedly “unlawful” advertising statements about:
  • BANG® drinks being “Potent Brain and Body Fuel”;
  • Super Creatine® and its positive effect on the brain;
  • positive effect of creatine on mental diseases, such as Alzheimer’s, Parkinson’s and Huntington’s;
  • BANG® drinks being “power enhancing beverages”;
  • L-Arginine, B-Vitamins, and BCAA Aminos and their positive effect(s) on building muscle mass; and
  • comparative advertising, such as “other energy drinks contain[ing] high sugar,” other “stereotypical high sugar, life-sucking soda[s] masquerading as an energy drink,” other “irresponsible Energizer[s],” etc.
Summons, Page 40, (A)Rejected (dismissed)
Prohibit, within 24 hours after service of the judgment, marketing, sale, supply, and/or promotion of EU BANG® energy drinks prominently depicting “L-Arginine” on their packagingSummons, Page 40, (B)Rejected (dismissed)
Prohibit, within 24 hours after service of the judgment, marketing, sale, supply, and/or promotion of EU BANG® energy drinks containing Super Creatine® and/or depicting Super Creatine® on their packagingSummons, Page 40, (C) and (D)Rejected (dismissed)
Order, within 14 days after service of the judgment, production to Monster of the following information:
  • number of EU BANG® drinks purchased, produced (by a third party) and sold in the EU, broken down by year and product;
  • list of all EU-based traders/distributors to whom Bang Energy sold and supplied EU BANG® drinks, including copies of all sales documentation;
  • names and details of traders/distributors who sold and supplied EU BANG® drinks to other defendants, including copies of all invoices between Bang Energy and those third parties;
  • names and details of the manufacturers of EU BANG® drinks as well as of the packaging of those products;
  • number of EU BANG® drinks meant for the EU market currently held in stock by Bang Energy and the other defendants; and
  • overview of the profits made with the sale of EU BANG® drinks, broken down by month (including a profit calculation by an accountant)
Summons, Pages 40-41, (E)Rejected (dismissed)
Order, within 14 days after service of the judgment, at Bang Energy’s own expense, to have a Dutch bailiff destroy EU BANG® drinks kept in stock and draw up a report of this destruction, to be sent directly to Monster’s attorneysSummons, Page 41, (F)Rejected (dismissed)
Order, within 8 hours after service of the judgment, Bang EU to post a link to the judgment on its website linked to the domain name <bangenergy.eu>, together with a detailed “Notification of Judgment on Misleading Advertising,” to be displayed at this website for at least 90 daysSummons, Pages 41-42, (G)Rejected (dismissed)
Order, within 8 hours after service of the judgment, VPX Sports to post a link to the judgment on its website linked to the domain name <bangenergy.us>, together with a detailed rectification notice, to be displayed at this website for at least 90 daysSummons, Page 42, (H)Rejected (dismissed)
Order, within 8 hours after service of the judgment, VPX Sports and Bang EU to post on their social media accounts (Instagram and Facebook) a detailed rectification notice, to be displayed for 14 consecutive days as the most recent postSummons, Page 42, (I)Rejected (dismissed)
Order Jack Owoc to read a detailed rectification notice in a video posted on the YouTube channel of VPX, to be displayed for at least 90 daysSummons, Pages 42-43, (J)Rejected (dismissed)
Order, within 8 hours after service of the judgment, VPX Sports and Bang EU to inform in writing all others selling EU BANG® drinks of the alleged “unlawfulness” of the challenged advertising statements and to request that these sellers immediately remove any unlawful statements from their websites, social media, and any and all other channels of communication directed at customersSummons, Page 43, (K)Rejected (dismissed)
Order, within 8 hours after service of the judgment, VPX Sports and Bang EU to notify all other sellers of EU BANG® drinks that the sale of such drinks featuring one or more of the alleged “unlawful” advertising statements, or containing Super Creatine® or L-leucine as an ingredient, or the statement of Super Creatine® on packaging is unlawful, and to request that these sellers immediately cease the sale thereof and return any inventory of EU BANG® drinks at no charge, while keeping Monster’s lawyers informed in writing of the traders/distributors who return the products and of the number and type of products being returned Summons, Page 43, (L) Rejected (dismissed)
Order, within 24 hours of dispatch or receipt, VPX Sports and Bang EU to provide Monster’s attorneys with copies of all written communications referred to in sections (K) and (L) of the Summons Summons, Page 43, (M) Rejected (dismissed)
Order VPX Sports and Bang EU, jointly and severally, to pay Monster’s lawyers a penalty of €10,000 for each time VPX Sports and/or Bang EU violates any obligations referred to in sections (A) through (L) of the Summons, and a penalty of €5,000 for each day that the violation continues Summons, Page 43, (N) Rejected (dismissed)
Order Jack Owoc to pay Monster a penalty of €5,000 for each time that he violates any obligations referred to in sections (A) through (J) of the Summons, and a penalty of €500 for each day that the violation continues; or, alternatively, a penalty to be determined by the court Summons, Page 43, (P) Rejected (dismissed)
Order VPX Sports, Bang EU, and Jack Owoc (and the other defendants), jointly and severally, to pay the costs of the proceedings Summons, Page 43, (Q) Rejected (dismissed)

The Judgment dated May 9, 2019, also linked below, does not award any of the foregoing relief at issue. In other words, as noted in the chart above, the Dutch court rejected or dismissed all of the specific relief requested by Monster.

BANG® is Not Banned in Europe.

Notwithstanding Monster’s false statements [2], BANG® energy drinks are not banned in Europe or elsewhere.

Specifically, Monster filed its Summons seeking, among other things, a worldwide ban (or “global prohibition”) against BANG® energy drinks to be imposed “within 24 hours after service of the judgment.” Summons at page 40 (¶ 12.5, and “Wherefore” subsections (A)-(D)). At the hearing on the Summons, Monster reduced the scope of its requested ban to the EU, again, to be imposed within 24 hours after service of the judgment. Judgment at ¶ 3.1.

A hearing in this action was held on April 18, 2019, in Amsterdam. After hearing Monster’s claims on the merits, the Dutch court did not impose any ban at all in Europe or elsewhere and, in fact, ruled Monster to be the losing party, ordering Monster to pay defendants’ legal fees and costs.

The court merely directed Bang EU, by June 9, 2019, to make two “small” relabeling changes regarding (1) the prominent mention of the word “L-Arginine” on the lip (or top) of its cans in Europe, and (2) the use of a “muscular arm pictogram” on BANG Energy’s website for its European products. Judgment at ¶ 4.13 (finding these changes to be “relatively small infractions” and a “partial[]” award). The basis for the court’s small L-Arginine change is that the exact amount of this essential amino acid—which is part of a proprietary blend of other amino acids in EU BANG® drinks—is not “mention[ed]” on the cans of those drinks, because, as noted, the amount of L-Arginine is proprietary. Id. at ¶ 4.8. The basis for the court’s small pictogram change on the BANG Energy website for European products is that the isolated effect of L-Arginine in EU BANG® drinks on the promotion of muscle mass has not been “scientifically proven” at this time, notwithstanding that the combined effect of BANG® has been scientifically proven. Id. at ¶ 4.10. [3]

Bang EU already has implemented the two small changes at issue, and is otherwise operating as usual, well in advance of the 30-day window provided by the Dutch court to implement those changes.

The Dutch Court Rejected Monster’s Claims Regarding Super Creatine®.

In the Dutch action, Monster alleged numerous false and misleading claims regarding VPX’s patented Super Creatine®, which is one of many ingredients in BANG® products offered for sale in the United States (not Europe), including that, according to Monster, Super Creatine® is an “unlawful” food ingredient. Summons at pages 40-44; Judgment at ¶ 3.6.

The Dutch court rejected all such claims regarding Super Creatine®, noting the lack of jurisdiction over those claims and, regardless, recognizing that Super Creatine® was never and is not now included as an ingredient in EU BANG® drinks. Judgment at ¶¶ 3.9, 4.4, 4.6. 

The Dutch Court Reaffirmed that BANG Energy Does Not Engage in “Misleading Advertising” or “Unfair Commercial Practice.”

Once again, contrary to Monster’s false and misleading statements [4], the Dutch court determined that that VPX, Bang EU, and Owoc have not engaged and do not engage in any unfair commercial practices.

For example, regarding the advertising of BANG® as “potent brain and body fuel,” the Dutch court found that the “average consumer” would regard this and similar advertising as “common” and “[t]his is therefore no misleading advertising, nor unfair commercial practice.” Judgment at ¶ 4.9.

With respect to the advertising of BANG® via a pictogram with a dumbbell, suggesting that BCAA Aminos, including leucine, have an effect on muscle mass, the Dutch court found Monster’s claims to have “been given insufficient substance, all the less so since Monster uses the same pictogram for its own product Reign.” Judgment at ¶ 4.10.

Similarly, the Dutch court rejected Monster’s challenge of BANG® products as being “performance enhancing beverages,” which, as the court reaffirmed, “is not an unfair commercial practice.” Judgment at ¶ 4.11.

The Dutch court also rejected Monster’s claims regarding Bang Energy’s comparative advertising, including its statement that: “BANG Energy drinks are not your stereotypical high sugar, life sucking soda masquerading as an energy drink! High sugar drinks spike blood sugar producing metabolic mayhem causing you to crash harder than a test dummy into a brick wall.” Judgment at ¶ 4.10*. [5] The Dutch court noted that Bang EU (and, presumably, Bang Energy) “should be allowed to make a comparison between its sugar-free energy drink and many other energy drinks that do contain sugar.” Id. The court added that any such “comparison is intended that way and will be understood as such by the average consumer” and, otherwise, that “the comparison is not so disparaging that it would justify a ban.” Id.

Lastly, the Dutch court rejected all of Monster’s claims allegedly arising under the Dutch Medicines Act, the Medicinal Products Directive, the Claims Regulation, and the Food Information Regulation, finding Monster’s such claims to “fall short.” Judgment at ¶ 4.12.

The Dutch Court Found Monster to be the Losing Party, Ordering Monster to Pay Attorneys’ Fees and Legal Costs of the Proceeding.

Apart from the “partial[]” award for the two “relatively small infractions” addressed above, the Dutch court “rejected” Monster’s main claims “as being too far-reaching.” Judgment at ¶ 4.13.  Having brought those frivolous claims, the Dutch court deemed Monster to the overall losing party; i.e., “the party largely found to be in the wrong against VPX, Bang B.V., and Owoc,” ordering Monster “to pay their expenses,” including “the costs of these proceedings” and their “lawyer’s fees.” Id. at ¶¶ 4.15, 5.

In sum, the Dutch court ruling has been a resounding victory for not only VPX Sports, Bang EU, and Jack Owoc, but, also for consumers who value legitimate marketplace competition, and who are not fooled by propaganda and trumped up litigation against Bang Energy that ultimately fails on the merits.
___

SOURCE: VPX/Bang Energy

For further information about this action, please contact VPX’s General Counsel, Marc Kesten, Esq., at Legal@vpxsports.com, or (954) 641-0570. 

Citations:

[1] Monster Energy, “Monster Energy Announces BANG Energy Drinks Banned in European Union,” PR Newswire (May 15, 2019).

[2] Id.

[3] In fact, Bang Energy is the only energy drink on the market that is supported by over 28 landmark, human-subject studies. See www.bang-energy.com.

[4] Monster Energy, “Monster Energy Announces BANG Energy Drinks Banned in European Union,” PR Newswire (May 15, 2019).

[5] The unofficial translation of the Judgment linked to Monster’s May 15, 2019 press release (supra notes 1, 2 and 4), which is also linked here for consistency purposes, inadvertently references ¶ 4.10 twice—once immediately before ¶ 4.11, and once immediately after ¶ 4.11. The paragraph addressing the Dutch court’s rejection of Monster’s comparative advertising claims refers to the latter paragraph and is cited herein as ¶ 4.10*.

A PDF accompanying this announcement is available at http://ml.globenewswire.com/Resource/Download/e97f46a2-38b9-49ee-baa4-0d8547b7b3b8