IP Law Daily, TRADEMARK—D. Nev.: Trade dress and dilution claims against nutritional-supplement company dismissed, (Feb 3, 2025)

By Brian Craig, J.D.

The manufacture of “Balance of Nature” nutritional supplements failed to show evidence of inherent distinctiveness of its red and green bottles for trade tress infringement.

In a dispute between competitors that sell fruit and vegetable supplements, the federal district court in Nevada has dismissed trade dress infringement and dilution claims brought by Evig, LLC, which manufactures the “Balance of Nature” nutritional supplements, against the manufacturer of “Simply Nature’s Promise” supplements. In granting Mister Brightside, LLC’s motion for summary judgment, the court concluded that the manufacture of “Balance of Nature” nutritional supplements failed to show evidence of inherent distinctiveness with its red and green bottles for trade tress infringement. The court also found that the maker of “Balance of Nature” nutritional supplements failed to show that its trade dress is famous in Nevada (Evig, LLC v. Mister Brightside, LLC, No. 2:23-cv-02051-JAD-NJK (D. Nev. Jan. 31, 2025)).

Evig, LLC sells fruit and vegetable supplements under the brand name “Balance of Nature.” In April 2021, Evig began selling its “fruits” and “veggies” supplements in red and green bottles: Mister Brightside, LLC is a competing nutritional-supplement company that began selling fruit and vegetable supplements under the brand name “Simply Nature’s Promise” in January 2022. “Simply Fruits” supplements are sold in bottles with an orange label, and its “Simply Veggies” supplements are sold in bottles with a green label. The manufacturer of the “Balance of Nature” supplements sued the manufacturer of Simply Nature’s Promise” supplements alleging trade dress infringement and dilution. The court denied Evig’s request for a preliminary injunction. Following discovery, Mister Brightside moved for summary judgment.

Trade dress. The court concluded that the “Balance of Nature” supplement manufacturer failed to show any evidence of inherent distinctiveness to support trade dress infringement. The “Balance of Nature” supplement manufacturer argued that its famous bottle appearance is synonymous with high quality ingredients from the United States. But the court found no evidence to show the trade dress uniquely identifies the product. The “Balance of Nature” supplement maker failed to show that its design is indeed famous or unique.

Furthermore, the “Balance of Nature” supplement maker failed to show that its packaging has acquired secondary meaning. “Balance of Nature” uses green and red bottles but failed to show that the accompanying images, words, fonts, and secondary colors have achieved secondary meaning. In addition, Evig’s trade dress was not in use long enough to create a genuine dispute of fact about exclusive length of use. Evig’s own trademark application shows that it been selling its products only since April 2021, a short period of time before Mister Brightside launched its competing product in January 2022. Thus, the court granted summary judgment in favor of Mister Brightside.

Dilution. The court also held that the “Balance of Nature” supplement manufacturer failed to show evidence to support trademark dilution that the “Balance of Nature” mark is famous in Nevada. the “Balance of Nature” supplement manufacturer failed to show any evidence of advertisements using its trade dress in Nevada, the geographical scope of its marketing or sales, or the degree of recognition of the mark in Nevada. Evig launched in 1997 to show that its products have been in the Nevada market for decades. But the undisputed evidence shows that Evig began using its trade dress in 2021 based on the trademark application. Statements that Evig has been in business do not establish how long it has used its trade dress in Nevada. Evig has not come forward with any evidence that demonstrates that the “Balance of Nature” mark is famous in Nevada. Evig has not produced evidence of advertising using its trade dress in this state. The trade dress is not registered with the USPTO.

The Case is No. 2:23-cv-02051-JAD-NJK.

Judge: Dorsey, J.

Attorneys: Kurt K. Harris (Harris Law Office PLLC) for EVIG, LLC. Bethany L. Rabe (Greenberg Traurig LLP) for Mister Brightside, LLC.

Companies: EVIG, LLC; Mister Brightside, LLC

Cases: Trademark NevadaNews