Muscular Opinion: Court Finds Consumer Confusion Comments Admissible Under State Of Mind Exception

Can you tell the difference between ready to drink (RTD) nutritional beverages Muscle Milk and Muscle Power? CytoSport, the maker of Muscle Milk, claims that consumers cannot, and that is why it sued Vital Pharmaceuticals, Inc., the maker of Muscle Power, for, inter alia, trademark infringement. And, pursuant to the recent ruling of the United States District Court for the Eastern District of California in Cytosport, Inc. v. Vital Pharmaceuticals, Inc., 2009 WL 1444535 (E.D. Cal. 2009), CytoSport will be able to prove actual confusion by consumers based upon consumer feedback, notwithstanding the rule against hearsay.

In Vital Pharmaceuticals, CytoSport claimed that the packaging for Muscle Milk,

contains a number of distinctive components, including: (1) the package is visually divided into three sections: top, middle, and bottom; (2) on the middle portion of the package, the word MUSCLE is prominently displayed above the word MILK in capital letters in a bold, block-letter, white font on a dark background; (3) on the lower portion of the package there is a colored swirl that reflects the flavor of the liquid in the package; (4) on the top portion of the package the flavor of the product is identified; and (5) on the side of the package, the words MUSCLE MILK are printed in bold, block-letter font and oriented from top to bottom.

And it claimed, inter alia, that Vital Pharmaceuticals, Inc., infringed the three trademarks CytoSport has in connection with Muscle Milk with its packaging of Muscle Power, which

contains a number of components that are strikingly similar to plaintiff’s product, including (1) the package is visually divided into three sections: top, middle, and bottom; (2) on the middle portion of the package, the word MUSCLE is prominently displayed above the word POWER in capital letters in bold, block-letter, white font on a dark background; (3) on the lower portion of the package there is a colored swirl that reflects the color and flavor of the liquid in the package; (4) on the top portion of the package the flavor of the product is identified; and (5) on the side of the package, the words MUSCLE POWER are printed in bold, block-letter font and oriented from top to bottom. 

In order to prove its trademark claim, CytoSport wanted to prove actual consumer confusion between the two marks, which is “persuasive proof that future confusion is likely.” Vital Pharmaceuticals, Inc., however, claimed that CytoSport was impermissibly trying to prove such confusion through inadmissible hearsay. This evidence consisted of comments from customers and owners of 7-Eleven stores, who confused the two products. Vital Pharmaceuticals, Inc. claimed that these comments were hearsay under Federal Rule of Evience 801(c).

The court disagreed, first by (unconvincingly, in my opinion) arguing that the comments were non-hearsay. But I won’t even address that first finding because it is clear that the court’s second finding was correct. And that finding was that even if the comments were hearsay, they were admissible under Federal Rule of Evidence 803(3), which provides an exception to the rule against hearsay for

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

It seems clear to me that the aforementioned comments are being offered by CytoSport to prove the statement of mind — confusion — of the declarants making those comments. As such, they are admissible under the state of mind exception.

-CM