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Daniel T. Pascucci, Esq. (SBN 166780) [email protected] Nathan R. Hamler, Esq. (SBN 227765) [email protected] MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC 3580 Carmel Mountain Road, Suite 300 San Diego, California 92130 Telephone: (858) 314-1500 Facsimile: (858) 314-1501 Mark B. Mizrahi, Esq. (SBN 179384) [email protected] BELASCO JACOBS & TOWNSLEY, LLP 6100 Center Drive, Suite 630 Los Angeles, California 90045 Telephone: (310) 743-1188 Facsimile: (310)743-1189 Attorneys for Defendant INNOVATION VENTURES, LLC dba LIVING ESSENTIALS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff,

Case No. 08-cv-1166 IEG (POR) LIVING ESSENTIALS' OPPOSITION TO HANSEN BEVERAGE COMPANY'S MOTION FOR PRELIMINARY INJUNCTION Date: September 15, 2008 Time: 10:30 a.m. Courtroom.: 1 Judge: Irma E. Gonzalez Date Filed: 07/01/08

18 v. 19 20 21 22 23 24 25 26 27 28 INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

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TABLE OF CONTENTS

INTRODUCTION ......................................................................................... ARGUMENT ............................................................................................... I.

1 2

LEGAL STANDARD FOR PRELIMINARY INJUNCTION ................................................................................ 2 HANSEN CANNOT SUCCEED ON THE MERITS ................................. 3 A. Living Essentials' Name, Labels And Commercials Are Not False ............................................. 1. 2. Hansen's Assertion That Only "Calories = Energy" Is False ......

3 3

The Ingredients of 5-HOUR ENERGY® Provide Energy ............ 5 a. A Clinical Study and the Scientific Literature Supports Living Essentials ........................ 5 Hansen Admits 5-HOUR ENERGY'S® Ingredients Provide Energy .................................... 6 7

Hansen's Smoking "Gun" Had No Ammunition .....................

The NAD Has Already Validated the Truth And Accuracy of Living Essentials' Advertisements ................ 8

Living Essentials' Claims Regarding Energy Drinks Are Not False ...................................................................... 9

THE BALANCE OF HARMS TIPS SHARPLY AGAINST ENTRY OF A PRELIMINARY INJUNCTION.................................................... 11 A. B. Irreparable Harm Is Not Presumed ............................................ Hansen's Conclusory Assertions Of Irreparable Harm Are Exposed As Absurd By "Record Sales" Over The Last Six Months ...... Hansen's Delay Significantly Cuts Against Any Assertions of Irreparable Harm ................................................ An Injunction Would Devastate Living Essentials' Business .............. 11

13

13 15 17

CONCLUSION ............................................................................................. i

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INDEX OF AUTHORITIES CASES American Motorcyclist Assn. v. Watt, 534 F.Supp. 923 (C.D. Cal. 1981) ................................................................................18 BellSouth Advertising & Pub. Corp. v. Lambert Pub., 45 F.Supp.2d 1316 (S.D. Ala. 1999)...............................................................................4 Brooktree Corp. v. Advanced Micro Devices, Inc., 705 F.Supp 491 (S.D. Cal. 1988) ..................................................................................18 Castrol Inc. v. Pennzoil Co., 987 F.2d 939 (3rd Cir. 1993) ..................................................................................13, 14 Charlton v. Estate of Charlton, 841 F.2d 988 (9th Cir. 1988).........................................................................................20 City of Anaheim v. Kleppe, 590 F.2d 285 (9th Cir. 1978).........................................................................................18 Colorado River Indian Tribes v. Parker, 776 F.2d 846 (9th Cir. 1985).........................................................................................15 Comic Strip, Inc. v. Fox Television Stations, Inc., 710 F.Supp. 976 (S.D.N.Y. 1989).................................................................................16 Cordon Bleu v. BPC Pub. Ltd., 327 F.Supp. 267 (S.D.N.Y. 1971).................................................................................16 Energy Four, Inc. v. Dornier Medical Systems, Inc., 765 F.Supp. 724 (N.D. Ga. 1991) ...................................................................................5 Exxon Corp. v. XOIL Energy Resources, Inc., 552 F.Supp. 1008 (S.D.N.Y. 1981)...............................................................................16 Harris Research v. Lydon, 505 F.Supp.2d 1161 (D. Utah 2007) .............................................................................13 Int'l Jensen, Inc. v. Metrosound USA, Inc., 4 F.3d 819 (9th Cir. 1993)...............................................................................................3 Mathematica Policy Research, Inc. v. Addison-Wesley Publishing Co., 1989 WL 63075 2 (S.D.N.Y 1989) ...............................................................................16 Mazurek v. Armstrong, 520 U.S. 968 (1997) ........................................................................................................3 MercExchange, LLC, 547 U.S. 388, 126 S.Ct. 1837 (2007) ............................................................................13

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MyGym LLC v. Engle, 2006 WL 3524474 11 (D. Utah 2007) ..........................................................................13 Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374 (9th Cir. 1985).......................................................................................16 Playboy Enters., Inc. v. Netscape Commc'ns Corp., 55 F.Supp.2d 1070 (C.D. Cal. 1999).............................................................................16 Reno Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126 (9th Cir. 2006).......................................................................................13 Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002)...........................................................................................4 Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144 (2nd Cir. 2007)........................................................................................13 W.E. Bassett Company v. Revlon, Inc., 354 F.2d 868 (2d Cir. 1966)..........................................................................................16 Whittier Colleges v. American Bar Ass'n, 2007 WL 1624100, 9 (C.D. Cal. 2007).........................................................................16

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INTRODUCTION Hansen Beverage Company ("Hansen") filed a Motion for Preliminary Injunction seeking to enjoin the defendant, Innovation Ventures, LLC ("Living Essentials"), from selling a product called 5-HOUR ENERGY®, the leading 2 oz. liquid, dietary supplement that has produced over $150,000,000 in revenue to Living Essentials over the last four (4) years. Hansen's motive is clear ­ shut down the market leader in 2 oz. "energy shots" to pave the way for Hansen's new 3 oz. "energy shot" which it expects to release this quarter. Hansen's claims of irreparable harm are specious, at best. Hansen admits to monitoring the "energy shot" market and has likely known about the 5-HOUR ENERGY® product for months, if not years. Yet, Hansen waited until just prior to the release of its new "energy shot" to bring suit and seek a preliminary injunction. Such delay does not evidence irreparable harm. Nor does the $600 million in admitted "record sales" (a 20% increase over last year) that Hansen just reported for the first six (6) months of 2008. Clearly, Hansen has not been harmed, nor would it be harmed going forward if Living Essentials continues its business until a trial on the merits. In contrast, the requested injunction would devastate Living Essentials' business and likely put it out of business and its employees out of work, giving Hansen the exact relief it requests without a trial on the merits. These facts do not support the drastic relief Hansen seeks. Hansen's substantive claims are equally without merit. Hansen claims that the name 5HOUR ENERGY®, the product label, and Living Essentials' advertising are false. In support of its motion, Hansen submitted an alleged "expert" opinion from an in-house physiologist employee, Dr. Thomas Davis, claiming that Living Essentials' advertising is false. The facts, however, do not support Dr. Davis or Hansen. The following overwhelming evidence proves that Living Essentials' product name, label and advertising are neither misleading nor false: · · · · A clinical trial establishing that 5-HOUR ENERGY® provides energy for five (5) hours; Admissions from Hansen that ingredients in 5-HOUR ENERGY® provide "energy;" Testimony from Dr. Gail Mahady, the Director of Clinical Pharmacognosy at the University of Illinois, that the advertising claims are accurate; and Overwhelming scientific literature that supports Living Essentials' advertising claims. 1 Case No. 08-cv-1166 IEG (POR)

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In addition to this overwhelming scientific evidence, the National Advertising Division (NAD) of the Council of Better Business Bureaus (CBBB), whose stated purpose is "to foster truth and accuracy in national advertising through voluntary self-regulation," has previously reviewed and substantiated the accuracy of the very same advertising that Hansen claims is false. Hansen cannot prove a probability of success on the merits or any irreparable harm, and the balance of hardship tips decidedly in Living Essentials' favor. Hansen's motion for preliminary injunction should be summarily denied, and the Court should consider sanctions for Hansen's transparent attempt to improperly use the Court's injunctive powers for its business objectives. ARGUMENT LEGAL STANDARD FOR PRELIMINARY INJUNCTION The party moving for a preliminary injunction must demonstrate that (1) it will suffer irreparable injury if the relief is denied; (2) it will probably prevail on the merits; (3) the balance of potential harms favors it; and (4) the public interest favors granting relief. Int'l Jensen, Inc. v. Metrosound USA, Inc., 4 F.3d 819, 822 (9th Cir. 1993). Courts also apply an "alternative standard" which requires the moving party to meet its burden by showing either: (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted, or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor. Id. The alternative formulations are not separate tests, "but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases." Id. Under either standard, a preliminary injunction is an equitable remedy and "the trial court must balance the equities in the exercise of its discretion." Id. Hansen carries the burden of persuasion on its motion and must make a "clear showing" that the "drastic remedy" of a preliminary injunction is deserved. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). /// /// /// 2 Case No. 08-cv-1166 IEG (POR)

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II.

HANSEN CANNOT SUCCEED ON THE MERITS A. Living Essentials' Name, Labels And Commercials Are Not False

Hansen asserts that that the name 5-HOUR ENERGY® and claims made by Living Essentials on its label and in its advertising are literally false. Hansen is wrong. As Hansen's own advertising, an independent clinical study on 5-HOUR ENERGY®, and the declaration of an independent expert all conclusively establish, Livings Essentials' product name and advertising are in no way false or misleading. In fact, the National Advertising Division of the Better Business Bureau determined ­ almost a year ago ­ in a widely published decision that the same Living Essentials advertising that Hansen claims is false in its motion, is instead true and accurate. 1. Hansen's Assertion That Only "Calories = Energy" Is False

Relying solely on its employee "expert," Dr. Thomas Davis, Hansen asserts that any claim that 5-HOUR ENERGY® provides energy, let alone five (5) hours of energy, is literally false because energy can only come from calories. (Hansen Brief at 13.) Hansen and Davis assert that since 5-HOUR ENERGY® has only 4 calories, it has little or no energy. declaration is at best, misleading, and in many instances false. First, Dr. Davis adopts a definition of "energy" from Wikipedia ­ "the ability to do work." (Davis Decl., ¶7.) Dr. Davis then alters his definition to equate "energy" with "calories. "1 (Davis Decl., ¶8.) He ignores the fact that energy has numerous definitions (Mahady Decl. ¶4), including being defined as "vigor, liveliness and vitality." (Exhibit 1, Hamler Decl., Wordsmythe (Id.) Dr. Davis'

Dictionary.)2 Indeed, if a term is subject to multiple meanings, this Court must consider all the meanings in determining if the term is misleading or false. Scotts Co. v. United Indus. Corp., 315 F.3d 264, 274 (4th Cir. 2002)(stating that because packaging can "reasonably be understood" to convey two different, but plausible, messages, argument of literal falsity must fail); BellSouth Advertising & Pub. Corp. v. Lambert Pub., 45 F.Supp.2d 1316, 1321 (S.D. Ala. 1999)(using a term

Under Davis' definition, a cup of coffee, which contains only two calories, would not provide the consumer with any energy. Many early risers that start their day with a cup of coffee would likely not agree. 2 The numerical exhibits referenced in this brief refer to the exhibits of the Declaration of Nathan R. Hamler, counsel for Living Essentials. 3 Case No. 08-cv-1166 IEG (POR)

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in "manner that reflects a different, though equally truthful and accurate, meaning" does not give rise to a Lanham Act violation). Nevertheless, under either definition, or a broad definition that encompasses both, Living Essentials' advertising is not misleading. It is the "vigor" caused by 5-HOUR ENERGY® that gives the consumer the "ability to do work." Moreover, it is the consumer's perspective on the meaning of the term energy that is relevant, not Dr. Davis' or the scientific textbooks. Energy Four, Inc. v. Dornier Medical Systems, Inc., 765 F.Supp. 724, 729-30 (N.D. Ga. 1991)(common understanding of a term's meaning among targeted consumers is the proper focus in a literal falsity analysis, even though incongruous with dictionary definition). Advertising throughout the "energy drink" market, including Hansen's own advertising, suggests that in the "energy drink" market, energy means "vigor, liveliness and vitality," and that energy drinks need not contain massive amounts of calories to provide the consumer with energy. (Hamler Decl., Exhibits 2 and 4.) Significantly, Hansen markets a number of "Low Carb" versions of its "energy drinks," such as Diet Red Energy and Monster Low Carb that contain just a few more calories (10 calories per serving) than 5-HOUR ENERGY® (4 calories per serving). (Hamler Decl., Ex. 2.) Yet, Hansen refers to them as "energy drinks" that provide an "energy boost." (Id.) Thus, Hansen itself believes that "energy" means something other than just "calories" to its own consumers, or it would not advertise as such. Moreover, there are literally dozens of examples of other major Hansen competitors that, like Hansen and Living Essentials, market a low or no calorie "energy drink" that each claims provides energy to the consumer.3 This is illustrated in Exhibit 4, a portion of which is summarized in the following table: Energy Drink Product RockStar Zero Carb Rock Star Sugar Free
3

Carbs/Calories 0 Carb 0 Carb

Advertising Claim "stepped up the energy" ... "cut the calories and carbs" "energy drink"

It does not appear that Hansen has brought claims of "false advertising" against any of these manufacturers, some of which it identifies as its biggest competitors. (Hamler, Decl. Exhibit 3, Hansen 2008 10-K Report at 10.) 4 Case No. 08-cv-1166 IEG (POR)

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Energy Drink Product Red Bull Sugar Free Boink No Fear Sugar Free Dopamine Sugar Free Sugar Free Crunk Sobe Adrenaline Rush Sugar Free Burn Damzl Fuel Sugar Free Full Throttle Zero

Carbs/Calories 0 Carb/10 calories 0 Carb/0 calories 1g Carb/10 calories 0 Carb/0 calories 0 Carb 2g Carb/20 calories 0 Carb 0 Carb/5 calories 0 Carb/10 calories

Advertising Claim "energy drink" "100% energy" "super energy" "energy drink" "energy drink" "performance energy" ... "energizing elements" "energy to burn" "energy buzz with zero sugar" "high octane energy drink" "energy drink"

Thus, it is clear that both the energy drink manufacturers, including Hansen, and the consumers both believe "energy" means something more than just "calories." Hansen did not provide one shred of evidence to suggest that Living Essentials' 5-HOUR ENERGY® fails to provide the consumer with five (5) hours of vigor, liveliness and vitality. 2. The Ingredients Of 5-HOUR ENERGY® Provide Energy

Dr. Davis' declaration is deficient in a second respect in that it ignores the ingredients in the bottle causing the body to generate energy. Indeed, other than discussing calories, Dr. Davis completely ignores the effects of the ingredients of 5-HOUR ENERGY®. Dr. Gail Mahady, an independent expert, testifies that, based on a review of the scientific literature, the ingredients of 5-HOUR ENERGY® provide energy for the body. (Mahady Decl. ¶ 3.) Moreover, in direct contradiction to Dr. Davis' declaration, Hansen itself admits that the compounds found in 5-HOUR ENERGY® provide the consumer with an "energy boost." (Hamler Decl., Ex. 2.) a. A Clinical Study And The Scientific Literature Supports Living Essentials

An independent clinical trial conducted by Dr. James Blum of the University of New England Medical Center (the "Blum clinical trial") conclusively establishes that Living Essentials' advertising is not literally false. (Henderson Decl., ¶ 21, Ex. C.) Likewise, Dr. Mahady testifies that both the Blum clinical trial and the scientific literature support the claims Living Essentials makes in its advertising. (Mahady Decl., ¶¶ 8-13.) 5 Case No. 08-cv-1166 IEG (POR)

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Dr. Mahady earned a Ph.D. in Pharmacognosy and is currently the Director of Clinical Pharmacognosy at the College of Pharmacy of the University of Illinois at Chicago. (Mahady Decl., ¶ 2.) Dr. Mahady has analyzed the Blum clinical trial and found it to be properly conducted and indisputable. (Id., ¶ 13.) Dr. Mahady strongly disagrees with the conclusory opinions of Dr. Davis. Indeed, she testifies that the Blum clinical trial establishes that the ingredients of the 5-HOUR ENERGY® product provide five (5) hours of energy to the user. (Id., ¶ 12.) Dr. Mahady also reviewed the ingredients of Living Essentials' 5-HOUR ENERGY® product and explained how each ingredient works to provide "energy" to the consumer. (Id., ¶¶810.) More specifically, she concludes that the 5-HOUR ENERGY® ingredients caffeine, tyrosine, taurine, B-vitamins, folic acid and choline, all work to provide the body with energy. (Id., ¶¶15-23.) In contrast to Dr. Davis' conclusory assertion that his opinions are supported by "the generally accepted principles of biochemistry, pharmacology and physiology" (Davis Decl. ¶¶16, 18-20, and 23), Dr. Mahady provides specific citation to the significant wealth of scientific literature that supports her opinions. (See footnotes to Mahady Decl.) The Blum clinical trial, the opinions of an independent, experienced, and credentialed scientist, and the scientific literature all lead to one inescapable conclusion ­ Living Essentials' 5HOUR ENERGY® product name, label and advertising are accurate. As such, Hansen has no possibility of success on the merits. b. Hansen Admits 5-HOUR ENERGY'S® Ingredients Give Energy

As if all the scientific data were not enough, Hansen itself admits that some of the ingredients of 5-HOUR ENERGY®, which are also found in Hansen's "energy drinks," provide an "energy boost" to consumers. This admission alone condemns any probability of success by Hansen on the merits. In advertising for its ten (10) calorie Diet Red Energy drink, Hansen states: Everyone needs a 'jumpstart' from time to time. Now you can get yours without all the calories!! Hansen's Diet Energy Supplement is specially formulated with the amino acid Taurine, panax Ginseng, L-Carnitine, key B Vitamins, Glucose and other specially selected 6 Case No. 08-cv-1166 IEG (POR)

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ingredients to provide an immediate energy boost*. (Ex. 2, emphasis added.) Likewise, Hansen's line of "Energy Water," named E2O, contains a mere 10 calories, yet Hansen claims: E2O infuses the natural thirst quenching qualities of purified water with an energy boost fueled by Ginseng, Taurine, B Vitamins, Electrolytes, Glucose and more! (Ex. 5, emphasis added.) Thus, Hansen admits that both B Vitamins and Taurine, two of the major components of 5HOUR ENERGY®, provide an "energy boost." This admission alone destroys Dr. Davis'

conclusions and renders Hansen's assertion that Living Essentials' product provides no energy due to its limited calories to be false. 3. Hansen's "Smoking Gun" Had No Ammunition

Hansen claims it has a "smoking gun" in the Blum clinical trial data and a statement published on Living Essentials' website, which Hansen asserts conclusively proves that Living Essentials' advertising is literally false. As the testimony of Dr. Mahady and the complete Blum study demonstrates, Hansen is wrong. It has no "smoking gun." Hansen asserts that Living Essentials' product does not provide 5 hours of energy because only 57% of the clinical trial participants that consumed 5-HOUR ENERGY® experienced more than 5 hours of energy. As Dr. Mahady explains, the complete clinical trial demonstrates that 5HOUR ENERGY® provided a statistical average of 4.92 hours of energy to those that consumed the product. (Mahady Decl., ¶ 13.) As Dr. Mahady indicates, Hansen provides no evidence to the contrary. (Id. at ¶3.) Thus, Hansen's claim that Living Essentials' product does not provide five (5) hours of energy is false. As such, Livings Essentials' product name and advertising are accurate and Hansen's injunction must be denied. Likewise, Hansen asserts that the words "No crash" on the 5-HOUR ENERGY® label are false because a small portion of the clinical trial participants that consumed the product experienced a mild crash. Hansen, however, curiously omits the fact that the product contains a disclaimer on this statement which states "Individual results may vary. See www.fivehour.com for more

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information." Living Essentials' advertising is not literally false if 77% ­ the vast majority ­ do not experience a crash and consumers are informed that "individual results may vary." Hansen additionally asserts that Living Essentials admits on its website that its product provides no "physical energy." That assertion is also false. Hansen takes the statement out of context. Living Essentials merely stated what it states here, what its independent expert states, and its clinical data supports ­ that 5-HOUR ENERGY® does not provide energy by putting massive amounts of calories (typically sugar) in the bottle like Hansen's product, but rather through stimulating the body to produce energy on its own. The product name 5-HOUR ENERGY®, its label, and any Living Essentials' advertising asserting that it lasts for 5 hours are not literally false. To the contrary, they are 100% accurate. 4. The NAD Has Already Validated The Truth And Accuracy Of Living Essentials' Advertisements

The National Advertising Division (NAD) of the Council of Better Business Bureaus (CBBB) has already substantiated the accuracy of the Living Essentials' advertising challenged in this motion. The purpose of the CBBB is "to foster truth and accuracy in national advertising through voluntary self-regulation." (Hamler Decl., Exhibit 14.) The NAD is the investigative arm of this organization used to police national advertisements to maintain consumer confidence in advertising claims. As noted on the CBBB website, us.bbb.org: The mission of the National Advertising Division (NAD) of the Council of Better Business Bureaus (CBBB) is to review national advertising for truthfulness and accuracy and foster public confidence in the credibility of advertising. Policy and procedures for NAD are established by the National Advertising Review Council (NARC). (Id.) The same advertising that is raised by Hansen in this motion, was reviewed by the NAD. Specifically, the NAD reviewed the following advertising statements made by Living Essentials: ! ! ! "Just one quick drink and you'll get hours of energy for work, play and everything in between." "Hours of energy now. No crash later--and no jitters." "B-Vitamins for energy." 8 Case No. 08-cv-1166 IEG (POR)

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! ! !

"Amino acids for focus and better mood." "Zero sugar, zero net carbs, zero herbal stimulants." "Drink it in seconds. Feel it in minutes. Last for hours."

(Henderson Decl., ¶ 19, Ex. A at p. 1.) The NAD reviewed: (1) publicly available scientific evidence concerning the effect of each of the product ingredients on body physiology and function, (2) a double-blind, placebo controlled, randomized clinical trial on Living Essentials' 5-Hour Energy® products, and (3) a scientific report of a leading expert, explaining the well-known, and generally accepted mechanisms of action for the energy enhancing effects of the taurine, caffeine, and D-glucuronolactone combination contained in 5-Hour Energy®. (Henderson Decl., Ex. A.) Upon review of this information the NAD determined: NAD finds Living Essentials' energy performance claims substantiated. NAD seeks, however, to ensure that Living Essentials' advertising consistently discloses the presence of caffeine in 5-Hour Energy® and that Living Essentials' claim of no crash effect is qualified. Living Essentials intends to modify its advertising to accommodate NAD's concerns. (Id.)

16 17 18 19 20 21 22 23 24 25 26 27 28 Since the NAD guidelines were promulgated in 2007, Living Essentials advertising discloses that the 5-Hour Energy® product includes caffeine and qualified its "no crash" advertisement with "individual results may vary" and a reference to Living Essentials' website. Thus, the advertising industry's own organization ­ with accepted expertise in determining the truth and accuracy of advertisements ­ has already determined that Hansen's preliminary injunction motion has no merit. B. Living Essentials' Claims Regarding Energy Drinks Are Not False

Hansen boldly asserts that "Living Essentials' television commercials draw negative comparison between 5-HOUR ENERGY® and another energy drink, which by clear and necessary implication is Hansen's "Monster Energy." (p. 19.) Living Essentials' television commercials mention "energy drinks" only in a general sense. The commercials do not mention Monster Energy or any other energy drink by name or implication. There are hundreds of energy drinks on the 9 Case No. 08-cv-1166 IEG (POR)

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market, but Hansen claims that Monster Energy is identified because the Living Essentials' ad references sugar, caffeine and guarana ­ common ingredients in many energy drinks. One need only review the leading energy drink producers (who have not complained about Living Essentials' advertisements) to learn that they also include sugar, caffeine and guarana. (See Hamler Decl., Exhibit 6, ROCKSTAR, FULL THROTTLE and BAWLS ingredients list.) In its Complaint, Hansen alleged that it is the only energy drink that included guarana ­ an allegation that is clearly false. Hansen then asserts that Living Essentials is untruthful when it states: "One minute you're wired up. The next you feel worse than before" and "the answer is large amounts of sugar and caffeine." These statements are fully supported by the scientific community and the clinical study discussed above. (Henderson Decl., Exs. A and C.) The clinical study compared the crash levels of 5-HOUR ENERGY®, Monster Energy, and Red Bull Energy. [T]he subjects testing Five-Hour had a more gentler let-down and did not go below their baseline, whereas the other drinks exhibit a crash that brought the energy of the subjects BELOW their morning energy levels. (Id., Ex. C at p. 31.)

16 17 18 19 20 21 22 23 24 25 26 27 28 The NAD also reviewed the study and concluded that this "study provided support for the advertiser's claims that consumers will experience less of a `crash' effect than they might with certain competing energy drinks that contain sugar." (Id., Ex. B at 3.) As further explained: [I]t is the combination of sugar and caffeine in the competing energy drink products that causes the "crash" effect, and since 5-Hour Energy does not contain any sugar, it does not cause a "crash" effect. Living Essentials stated that the crash effect occurs because of changes in blood sugar levels. Competing energy drinks such as Red Bull and Monster, stated the advertiser, contain between 27 and 39 grams of sugar and 23 and 27 grams of sugar, respectively. (Id., Ex. A at 11.) The combination of caffeine and sugar, as explained in Living Essentials ads, leads to the "crash effect." Sugar and caffeine are major ingredients of energy drinks and have been discussed negatively in numerous publications illustrating that "ingestion of sugar and caffeine" leads to a "jolt and crash." (Ex. 7, The Daily Aztec, 3/21/2007, JUICED ENERGY DRINKS STILL GIVE JOLT, 10 Case No. 08-cv-1166 IEG (POR)

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CRASH; The Associated Press, 10/30/2006, GLUT OF ENERGY DRINKS BRINGS FRESH WARNINGS.) Many organizations have considered banning "energy drinks" like Monster Energy from various locations, such as schools. (Ex. 8.) Finally, Hansen also asserts that an Internet comparison ad must refer to Hansen's Monster Energy®. Even if it did, Hansen has not asserted that anything in the ad is false. Nor could it ­ the comparison simply lists the ingredients. (Ex. 10.) As the NAD found, Living Essentials' television commercials are in no way false or misleading. III. THE BALANCE OF HARMS TIPS SHARPLY AGAINST ENTRY OF A PRELIMINARY INJUNCTION A. Irreparable Harm Is Not Presumed

In light of its inability to show that it would suffer any real harm if Living Essentials were allowed to remain in operation during the pendency of this lawsuit, Hansen falls back on the claim that irreparable harm is presumed, citing Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 944 (3rd Cir. 1993) and Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144 (2nd Cir. 2007). The Supreme Court recently ruled, however, that no such presumption applies. eBay v. MercExchange, LLC, 547 U.S. 388, 393-94, 126 S.Ct. 1837 (2007)(holding that presumptions in favor of injunctive relief are improper). Instead, courts must apply traditional principles of equity in determining whether to issue injunctive relief, which requires an actual showing of irreparable injury absent an injunction. Id. Following eBay, plaintiff must show, not presume, irreparable harm. Hansen states that eBay is distinguishable because it involved a patent case. However Hansen offers no explanation why that fact distinguishes it. (Dkt # 16 at 7.) That is because there is none. Moreover, numerous courts have found that eBay applies equally to Lanham Act cases like this one. Reno Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126, 1137 (9th Cir. 2006)(Lanham Act case citing eBay as standard and not applying presumption although court found probability of success on merits); Harris Research v. Lydon, 505 F.Supp.2d 1161, 1168 (D. Utah 2007)(no

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presumption of irreparable harm in preliminary injunction motion on Lanham Act claim, in view of eBay); MyGym LLC v. Engle, 2006 WL 3524474 *11 (D. Utah 2007)(same.). Castrol and Time Warner do not provide precedent for a presumption in this case as Hansen asserts. Time Warner states that the court can only apply a presumption of harm in cases "where [the] plaintiff demonstrates a likelihood of success in showing literally false [the] defendant's comparative advertisement which mentions the plaintiff's product by name." 497 F.3d at 161-162. That is not true because Hansen's name was never mentioned. Hansen then asserts that Time Warner stands for the proposition that you need not identify plaintiff by name in the advertisement. (Hansen Brief at 21.) Time Warner does not stand for such a broad proposition. In that case, applying Castrol, the court found that although the ads did not name the plaintiff, the ads in question could only be referring to plaintiff. 497 F.3d at 152. In an attempt to bolster its weak case, Hansen combines elements from all the advertisements rather than considering each individually. When each is considered individually, as seen by consumers, Hansen's assertions crumble. First, the 5-HOUR ENERGY® name and its label contain no comparative advertising, thus, no presumption of harm applies. Second, the television advertisements at issue do not refer to, or name Hansen, nor could one reasonably infer that they do. The ads refer non-specifically to "energy drinks." As discussed above, there are dozens of energy drinks with sugar, caffeine and guarana. These are not like the ads in Time Warner that could only have referred to the plaintiff. 497 F.3d at 152. Finally, Hansen asserts that an Internet ad comparing the ingredients of 5-HOUR ENERGY® to a "Popular Canned Energy Drink" must refer to Hansen's Monster Energy drink. Even if it did, Hansen has not asserted that anything in the comparison ad is false ­ the comparison is simply a list of the ingredients. (Ex. 10.) Notwithstanding the fact that Hansen cannot prove literal falsity for any of the ads, Hansen has not demonstrated any entitlement to a presumption of irreparable harm. /// /// /// 12 Case No. 08-cv-1166 IEG (POR)

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B.

Hansen's Conclusory Assertions Of Irreparable Harm Are Exposed As Absurd By "Record Sales" Over The Last Six Months

Simply put, Hansen has enjoyed "record sales" in a declining market, but asserts a conclusory and speculative belief of lost sales and a reduction in good will. (Hansen Brief at 21.) Hansen provides no evidence that any consumer was deceived by Living Essentials' allegedly deceptive advertising, and no evidence that it lost any sales to Living Essentials. Such speculative assertions of harm do not warrant a preliminary injunction. Colorado River Indian Tribes v. Parker, 776 F.2d 846, 849-850 (9th Cir. 1985). Moreover, any assertion of irreparable harm is destroyed by Hansen's recent earning reports where it reported nearly six hundred million dollars ($600,000,000) in sales for the first six months of 2008 ­ a 20% increase over the previous year. (Hamler Decl., Exhibit 11.) Hansen refers to these as "record sales." (Id.) Hansen's CEO Sacks attributed this growth to its MONSTER® energy drinks, stating: We are proud of the continued strong performance of the MONSTER® brand at a time when almost all categories of ready-todrink beverages in the United States are experiencing weakness. (Hamler Decl., Ex. 11, Hansen Press Release at 2.) If Living Essentials is specifically targeting Hansen and causing this irreparable harm, why is Hansen experiencing "record sales"? The fact is, Hansen has not experienced any harm, which explains Sacks conclusory and speculative assertions of harm with no evidentiary basis, as well as its own financial information to the contrary. Hansen has not met its burden of establishing irreparable harm.4 C. Hansen's Delay Significantly Cuts Against Any Assertions Of Irreparable Harm

Hansen has likely known about Living Essentials' 5-HOUR ENERGY® product and its ingredients for years. Living Essentials' products are in tens of thousands of stores throughout the country ­ the same stores that sell Monster Energy. Yet, Hansen fails to explain why it waited,

In any event, lost sales are not "irreparable harm" but are compensable by monetary damages. 13 Case No. 08-cv-1166 IEG (POR)

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until the verge of releasing its own 3-ounce "energy shot" product, to move for this preliminary injunction. Inexcusable delay such as this is a well-established reason for determining that no irreparable harm exists and denying an injunction. Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985)(finding that delay in requesting a preliminary injunction "implies a lack of urgency and irreparable harm"); Exxon Corp. v. XOIL Energy Resources, Inc., 552 F.Supp. 1008, 1012 (S.D.N.Y. 1981)(Two month delay fatal to preliminary injunction motion); W.E. Bassett Company v. Revlon, Inc., 354 F.2d 868, 872 n.4 (2d Cir. 1966)(Two and one-half month delay showed absence of irreparable injury); Cordon Bleu v. BPC Pub. Ltd., 327 F.Supp. 267, 270-71 (S.D.N.Y. 1971)(No excuse for 13 week delay); Comic Strip, Inc. v. Fox Television Stations, Inc., 710 F.Supp. 976, 981(S.D.N.Y. 1989)(Three month delay showed no irreparable harm); Mathematica Policy Research, Inc. v. Addison-Wesley Publishing Co., 1989 WL 63075 *2 (S.D.N.Y 1989)(Three and one-half month delay "dissipates their assertion of irreparable harm"). (Exhibit 12.) Moreover, a finding of delay in bringing a preliminary injunction rebuts any presumption of irreparable harm. Whittier Colleges v. American Bar Ass'n, 2007 WL 1624100, *9 (C.D. Cal. 2007) (Exhibit 13); Playboy Enters., Inc. v. Netscape Commc'ns Corp., 55 F.Supp.2d 1070, 1090 (C.D. Cal. 1999)(same.) Hansen has likely known about Living Essentials' 5-HOUR ENERGY® product for years. Indeed, Hansen is on the verge of introducing its own 3-ounce "energy shot," as Hansen calls it. (Hamler Decl., Ex. 15, Hansen Q-2 2008 Earnings Call Transcript at 4.) Hansen appears to have been monitoring the 2-ounce "energy shot" market for quite some time, waiting for it to grow before introducing its own product. (Id. at 11.) Hansen CEO Mr. Sacks recently stated: We think [energy shots] will remain a niche within the energy category. But it will be part of it and if it's part of it, you know we don't see any reason why we shouldn't be playing in that category and be a part for that reason we took the decision. We sort of saw and wanted [energy shot category] to mature it to a sufficiently high level to justify the costs and focus of launching products and putting efforts and manpower behind it. (Id. (emphasis added)).

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5

If Hansen has been monitoring this market, there is no doubt that it has been aware of Living Essentials' popular, market-leading 5-HOUR ENERGY® product. Indeed, the Nielsen

market surveys that Hansen quotes on page 2 of its brief demonstrate that Living Essentials' 5-HOUR ENERGY® product is one of the market leaders and has been for years. Indeed, even the NAD section of the Better Business Bureau saw Living Essentials' nationwide advertisements in 2007. Yet, Hansen claims it did not monitor national advertising of a company it calls a "direct competitor" in a "highly competitive" industry. Not likely. Hansen's CEO Mr. Sacks suggests that Hansen first learned of Living Essentials' advertisements about a month prior to the July 1, 2008 filing date of its Complaint,5 however, Hansen's Lanham Act counsel has been communicating with Living Essentials regarding a counterfeiter of both Hansen and Living Essentials' products as early as March of 2008. (See, Hamler Decl., Exhibit 16, 3/17/2008 e-mail from Cianfrana to Gocha).) Hansen curiously omits when it first became aware of the complained of 5-HOUR ENERGY® product name and its label. Indeed, in both its Complaint and motion for preliminary injunction, Hansen asserts that claims of providing "energy" in the product name and label are literally false on their face given the product's ingredients and that it has only 4 calories. If that were truly the case, Hansen did not need Living Essentials' commercials or website to make its claims and seek injunctive relief. Hansen has clearly known about Living Essentials' 5-HOUR ENERGY® product and its ingredients for many months, if not many years. Yet, Hansen cannot explain its delay in seeking relief. The motive of Hansen's motion is not to prevent irreparable harm because there is none. Rather, its motive is to remove a formidable competitor from the market to pave the way for its own competing product. D. An Injunction Would Devastate Living Essentials' Business

A "critical element" in evaluating the propriety of injunctive relief is "the relative hardship of the parties." City of Anaheim v. Kleppe, 590 F.2d 285, 288 n. 4 (9th Cir. 1978). Equity requires that even if the plaintiff can show a likelihood of success on the merits (which it cannot here),

Hansen likewise does not explain why it waited an additional five (5) weeks after filing the Complaint to file for injunctive relief if the harm was indeed irreparable. 15 Case No. 08-cv-1166 IEG (POR)

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preliminary injunctive relief should be denied if the balance of hardships tips decidedly in favor of the defendant. Brooktree Corp. v. Advanced Micro Devices, Inc., 705 F.Supp 491, 497(S.D. Cal. 1988)(injunctive relief denied even where plaintiff had shown that there was a likelihood of success on the merits because the balance of hardships tipped in favor of the defendants); American Motorcyclist Assn. v. Watt, 534 F.Supp. 923, 926 (C.D. Cal. 1981)(same.) Here, the balance of hardships tips sharply in favor of Living Essentials. Hansen's

purported showing of irreparable harm rests almost entirely on an alleged presumption flowing from its supposed likelihood of success on the merits and some speculative assertions of harm. However, as discussed above, Hansen's inactivity for months and obvious lack of concern over that period undercuts its professed need for immediate relief now and proves the absence of impending harm justifying extraordinary judicial intervention. Moreover, Hansen's $600 million "record sales" belittles Sacks' conclusory assertions. In contrast to the speculative and avoidable harm alleged by Hansen, the requested injunction would cause enormous harm to Living Essentials. An injunction would effectively shut down Living Essentials, putting numerous employees out of work, and costing the company tens of millions of dollars. (Henderson Decl. ¶¶ 11-17.) The injunction would also effectively destroy any goodwill that Living Essentials has generated in its 5-HOUR ENERGY® product prior to any determination of liability on the merits. (Id. at 13.) The balance of harm here tips decidedly in favor of Living Essentials and strongly warrants against injunctive relief before a trial on the merits. /// /// /// /// /// /// /// /// 16 Case No. 08-cv-1166 IEG (POR)

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CONCLUSION For the reasons set forth above, Hansen's motion for a preliminary injunction should be summarily dismissed. In event the Court is considering granting Hansen's motion, Living

Essentials requests an evidentiary hearing be scheduled on the motion. See, e.g., Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir. 1988).6

MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC By s/Nathan Hamler Nathan R. Hamler, Esq. Attorneys for Defendant INNOVATION VENTURES, LLC dba LIVING ESSENTIALS Mark A. Cantor (MI Bar No. P32661) Pro Hac Vice Application Filed Lorelli (MI Bar No. P63156) Pro Hac Vice Application Filed Thomas W. Cunningham (MI Bar No. P57899) Pro Hac Vice Application Filed BROOKS KUSHMAN P.C. 1000 Town Center, Twenty-Second Floor Southfield, MI 48075-1238 Telephone: (248) 358-4400 Facsimile: (248) 358-3351

While Living Essentials does not believe a preliminary injunction is appropriate, should the Court grant such an injunction, Living Essentials requests a hearing on the amount of an appropriate bond. 17 Case No. 08-cv-1166 IEG (POR)

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4416829v.1

CERTIFICATE OF SERVICE I, the undersigned, certify and declare that I am over the age of 18 years, employed in the County of San Diego, State of California, and am not a party to the above-entitled action. On August 29, 2008, I filed a copy of the following document(s): DEFENDANT'S OPPOSITION TO HANSEN BEVERAGE COMPANY'S MOTION FOR PRELIMINARY INJUNCTION by electronically filing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Norman L. Smith, Esq. Edward J. McIntyre, Esq. Alison L. Pivonka, Esq. SOLOMON WARD SEIDENWURM & SMITH 401 B Street, Suite 1200 San Diego, CA 92101 (619) 231-0303 Attorneys for Plaintiff HANSEN BEVERAGE COMPANY [email protected] [email protected] [email protected]

Executed on August 29, 2008, at San Diego, California. I hereby certify that I am employed in the office of a member of the Bar of this Court at whose direction the service was made.

s/Nathan Hamler Nathan R. Hamler, Esq.

1

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Daniel T. Pascucci, Esq. (SBN 166780) [email protected] Nathan R. Hamler, Esq. (SBN 227765) [email protected] MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC 3580 Carmel Mountain Road, Suite 300 San Diego, California 92130 Telephone: (858) 314-1500 Facsimile: (858) 314-1501 Mark B. Mizrahi, Esq. (SBN 179384) [email protected] BELASCO JACOBS & TOWNSLEY, LLP 6100 Center Drive, Suite 630 Los Angeles, California 90045 Telephone: (310) 743-1188 Facsimile: (310)743-1189 Attorneys for Defendant INNOVATION VENTURES, LLC dba LIVING ESSENTIALS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff,

Case No. 08-cv-1166 IEG (POR) DECLARATION OF NATHAN R. HAMLER IN SUPPORT OF LIVING ESSENTIALS' OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Date: September 15, 2008 Time: 10:30 a.m. Courtroom.: 1, Fourth Floor Judge: Irma E. Gonzalez Date Filed: 07/01/08

18 v. 19 20 21 22 23 24 25 26 27 28 1 INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

I, NATHAN R. HAMLER, DECLARE AS FOLLOWS: 1. I am an attorney at law duly licensed to practice law in the State of California, and

am an associate with the law firm of Mintz Levin Cohn Ferris Glovsky and Popeo, P.C, counsel for

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Defendant Innovation Ventures, LLC dba Living Essentials. I have personal knowledge of the facts set forth in this declaration and could and would competently testify as to the same. 2. Attached as Exhibit 1 to this declaration is a true and correct copy of a printout from

the online dictionary Wordsmyth of the definition for the word "energy," accessed 8/27/2008, located at the url address, http://www.wordsmyth.net/live/home.php?script=search&matchent=energy&matchtype=exact. 3. Attached as Exhibit 2 to this declaration is a true and correct copy of a document

downloaded from plaintiff Hansen Beverage Company's public web site in this action, accessed 8/28/2008, at the url address, http://www.hansens.com/products/products.php?subcat=15&color=energy, as well as a true and correct copy of a document downloaded from plaintiff Hansen's Monster Energy public web site, accessed 8/28/2008, at the url address http://www.monsterenergy.com/product/locarb.php. 4. 10-K Report. 5. Attached as Exhibit 4 to this declaration is a true and correct copy of advertisements Attached as Exhibit 3 to this declaration is a true and correct copy of Hansen's 2008

from multiple energy drink companies that make claims of having little or no sugar, carbohydrates, or calories. 6. Attached as Exhibit 5 to this declaration is a true and correct copy of a document

downloaded from plaintiff Hansen Beverage Company's public web site in this action, accessed 8/20/2008, at the url address, http://www.hansens.com/products/prod_e20.php. 7. Attached as Exhibit 6 to this declaration is a true and correct copy of a document

downloaded from Rock Star Energy Drink's website, accessed 8/28/2008, at the url address, http://www.rockstar69.com/product.php?pdt=1, as well as a true and correct copy of a document downloaded from Full Throttle Energy Drink's website, accessed 8/28/2008, at the url address, http://www.fullthrottleenergy.com/_dispatch_body.jsp., as well as a true and correct copy of a document downloaded from Bawls Guarana's energy drink website, accessed 8/28/2008, at the url address, http://www.bawls.com/guarana.html.

2

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8.

Attached as Exhibit 7 to this declaration is a true and correct copy from the research

website HighBeam Research of the newspaper article from The Daily Aztec, 3/21/2007, entitled JUICED ENERGY DRINKS STILL GIVE JOLT, CRASH, as well as a true and correct copy from the research website HighBeam Research of the newspaper article from the Associated Press, 10/30/2006, entitled GLUT OF ENERGY DRINKS BRINGS FRESH WARNINGS. 9. Attached as Exhibit 8 to this declaration is a true and correct copy of the online

newspaper article from The Portland Press Herald and Maine Sunday Telegram, 2/19/2008, entitled ENERGY DRINKS: TIME TO KILL THE BUZZ?, as well as a true and correct copy of the online newspaper article from the GazetteXtra, 5/24/2008, entitled NO MORE AMPS: SCHOOLS MAY BAN `ENERGY DRINKS'. 10. Attached as Exhibit 9 to this declaration is a true and correct copy of the United

States District Court for the District of Utah's decision in MyGym LLC v. Engle, No. 1:06-CV-130 TC, 2006 WL 3524474 (December 6, 2006). 11. Attached as Exhibit 10 to this declaration is a true and correct copy of a document

downloaded from defendant Living Essentials' public web site in this action for 5 HOUR ENERGY®, accessed 8/29/2008, at the url address, http://www.5hourenergy.com/compare.asp. 12. Attached as Exhibit 11 to this declaration is a true and correct copy of a press

release downloaded from plaintiff Hansen Beverage Company's public web site, entitled "Hansen Natural Reports Record 2008 Second Quarter and Six Months Financial Results." 13. Attached as Exhibit 12 to this declaration is a true and correct copy of the United

States District Court for the Southern District of New York's decision in Mathematica Policy Research, Inc. v. Addison-Wesley Publishing Co., No. 89 CIV. 3431 (JFK), 1989 WL 63075 (June 5, 1989). 14. Attached as Exhibit 13 to this declaration is a true and correct copy of the United

States District Court for the Central District of California's decision in Whittier College v. American Bar Ass'n, No. CV 07-1817 PA, 2007 WL 1624100 (May 7, 2007). 15. Attached as Exhibit 14 to this declaration is a true and correct copy of a document

downloaded from web site for the Council of Better Business Bureaus, accessed 8/29/2008, 3 Case No. 08-cv-1166 IEG (POR)

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accessed 8/29/2008, at the url address, http://us.bbb.org/WWWRoot/SitePage.aspx?site=113&id=11a9ff77-41ad-4861-a928-beface37d4f1. 16. Attached as Exhibit 15 to this declaration is a true and correct copy of a document

downloaded on 8/20/2008 from the web site at the url address http://seekingalpha.com/article/89905-hansen-natural-corp-q2-2008-earnings-call-transcript. 17. Attached as Exhibit 16 to this declaration is a true and correct copy of an email from

March 14 and 17, 2008 between Joe Cianfrani and Alan Gocha. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct and that this declaration is executed this 29th day of August, 2008 at San Diego, California. s/Nathan Hamler Nathan R. Hamler

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4416769v.1

CERTIFICATE OF SERVICE I, the undersigned, certify and declare that I am over the age of 18 years, employed in the County of San Diego, State of California, and am not a party to the above-entitled action. On August 29, 2008, I filed a copy of the following document(s): DECLARATION OF NATHAN R. HAMLER IN SUPPORT OF LIVING ESSENTIALS' OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION by electronically filing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Norman L. Smith, Esq. Edward J. McIntyre, Esq. Alison L. Pivonka, Esq. SOLOMON WARD SEIDENWURM & SMITH 401 B Street, Suite 1200 San Diego, CA 92101 (619) 231-0303 Attorneys for Plaintiff HANSEN BEVERAGE COMPANY [email protected] [email protected] [email protected]

Executed on August 29, 2008, at San Diego, California. I hereby certify that I am employed in the office of a member of the Bar of this Court at whose direction the service was made.

s/Nathan Hamler Nathan R. Hamler, Esq.

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EXHIBIT 1

Wordsmyth

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energies 1. the power capacity activity. or for 2 might (!), power(1), force power,activity potentiality, dynamism, efficacy, effectiveness {effective}, strength, puissance, potency 2. a sufficient amount such of power. Hehasno energyto continue job. the force (2), steam (4), v!gor (!), ! (3 ! vitality, effort, drive, stamina , moxie 3. vigor; liveliness; vitality. Hespokewith energy the subjectof boat building. on vitality (!), v!gor (2), z!ng, vim, ve,we,61an(!), pep, ! (2), brio bounce, blood, enthusiasm, action, sap, emphasis, activity, life spirit, liveliness {lively (adD},vivacity, animation 4. that which is usedup when any physical system doeswork. electrical energy. power pain, dynamic, output, activity, main, force, initiative, might, fire, exuberance, ability, zeal Suggest a Word
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08/27/2008

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Case 3:08-cv-01166-IEG-POR

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Case 3:08-cv-01166-IEG-POR

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EXHIBIT

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Filed 08/29/2008

PageI of Page 8 of 21 I

IN THE CAN
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Page 9 of 21

Dam,"l Fuel

Case 3:08-cv-01166-IEG-POR

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Page 1 of I

Imp://www.dan~zlfuel.conl/danlzlfuel/ingredients.php

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Document 25-6

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Page 12 of 21

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Document 25-6

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Page of Page 13 of221 2

Recon D~ll~er~l~ Energy Coffee Cola A hlghenergy dnnk Con~sting natural or Za~elne, ~isenC3al vitamins, coffee with cola ~ vanilla flavor~ C~ffe~ne like you've NEVER beforep had

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http:Hwwwjumpbeverages.com/jump.htm

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King 888: Sugar Free

Case 3:08-cv-01166-IEG-POR

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Page 1 of 2

http://www.king888~com/prod/sugarfree.html

8/28/2008

King 888: Sugar Free

Case 3:08-cv-01166-IEG-POR

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Page Page 15 of 2 of 2 21

KINI~ 888 SUGAR FREE
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8/28/2008

sugarflee drink> products mad > croc Case 3:08-cv-01166-IEG-POR Document 25-6

Filed 08/29/2008

Page1 Page 16 of 21of 1

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Document 25-6

Filed 08/29/2008

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SmartPower EnergyDrinks I The Original Smart EnergyDrink I Positive EnergyWithNo... Page I of

Case 3:08-cv-01166-IEG-POR

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The Great SmartPower Taste: Are YOU A Genius Or A Waste-oid?

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8/28/2008

Case 3:08-cv-01166-IEG-POR

Document 25-6

Filed 08/29/2008

Page 19 of 21

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