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Minn judge has ruled that Pedialyte's well-known square-footprint 1-liter bottle isn't protectable after all. Ruling came in suit brought 3 years ago by Pedialyte marketer Abbott Labs vs indie-owned Revitalyte, an oral electrolyte solution (OES) that targets dehydrated imbibers rather than babies and kids (BBI, Dec 12). Ruling granted Revitalyte's motion for summary judgment on some counts, including that one, but not on others including trademark challenge. It also granted Abbott's motion to dismiss evidence from Revitalyte's expert witness and to nix a jury trial. Abbott had brought suit at time market was seeing influx of OES entries and mainstreaming of Mexico's venerable Electrolit brand even as Abbott itself was trying to move Pedialyte beyond baby aisle with extensions like Pedialyte Sport that could hit wider range of demos and occasions. Indeed, in possible sign of direction Abbot might soon take, last Nov it registered AdultLyte trademark with US Patent & Trademark Office. Revitalyte founders AJ LaGoo and Ryan Leonard had earlier termed the Abbott suit a "brute force strike," but one that risked undermining claim Abbott might think it has to declaring the familiar shape of its 1-liter bottle proprietary. That seems to have happened now with ruling by Judge Donovan Frank of US District Court for Minn. The ruling was issued on Apr 30 but shared with us recently by Revitalyte team."They've spent more money on this lawsuit than we've ever generated," LaGoo told us today. He said co has been able to fund its defense mainly out of its insurance coverage while maintaining brand as a small but profitable enterprise that's allied with Monster Beverage's Monster Brewing unit for distribution via beer networks. In recent years it's transitioned from 1-liter bottle that was target of Abbott suit to 20-oz units.While Abbott claimed to have detected consumer confusion between the two brands, Judge Frank said that's "refuted by the ample evidence of third-party products with similar packaging because it shows a lack of exclusive use." He added: "The ubiquity of the square bottle shape in the OES market and in medical packaging suggests that it cannot be attributed to a single source in the minds of consumers." His conclusion: "The claimed Pedialyte trade dress does not have either inherent or acquired distinctiveness and is therefore not entitled to protection."Among Abbott's other allegations in suit, it worried that Revitalyte's overt targeting of hangover occasions might tarnish its brand. But Judge Frank pointed to Pedialyte's own foray into that use. "Abbott did, at one point, advertise Pedialyte as a cure for hangovers. A reasonable fact finder may instead decide that Abbott's own attempts to identify with that market indicate that associations with alcohol are not a tarnishment to the brand," he wrote.Still, Revitalyte is not out of the woods yet. Tho trade dress issue has been settled, there's still trademark issue to be resolved. "Neither party put forth much argument on the trademark claims," Judge Frank wrote. "At summary judgment, Revitalyte must demonstrate why it is entitled to judgment as a matter of law. With only minimal arguments, the Court is hesitant to grant summary judgment on this claim."

Revitalyte Fends Off Abbott Challenge on Trade Dress; Pedialyte Pack Seen as Not Defendable by Minn Court Judge

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