PHOENIX, April 17, 2019 /PRNewswire/ -- On April 16, 2019, ThermoLife International, LLC filed suit in Arizona Federal District Court against MusclePharm Corporation. This the fourth lawsuit that ThermoLife has filed against Dietary Supplement companies that sell products containing VASO6, an ingredient that ThermoLife contends is falsely advertised as being "patented" and "clinically proven" to cause vasodilation ("pump"), and is in direct competition with ThermoLife's patented ingredients. ThermoLife is a leading technology supplier in the sports nutrition and supplement industry. ThermoLife holds 17 patents with more than 450 claims related to novel uses of amino acid nitrate compounds, compositions, and uses in Dietary Supplements and food products.
ThermoLife's Complaint brings claims against MusclePharm for false advertising, false patent marking, and unfair competition. As the complaint alleges, MusclePharm has willfully and intentionally misled consumers into purchasing MusclePharm's falsely advertised, falsely marked, and misbranded products. According to ThermoLife's Complaint, MusclePharm's ill-gotten profits must be disgorged.
ThermoLife's claims relate to two MusclePharm pre-workout products: Wreckage and Combat Pre-Workout. Both of these products include an ingredient called VASO6. As ThermoLife's Complaint alleges, MusclePharm markets its Wreckage as creating "Advanced vascularity and pump with Vaso6™[.]" As also alleged in the Complaint, MusclePharm produces and sells Combat Pre-Workout, another product that includes VASO6. MusclePharm claims the VASO6 in Combat Pre-Workout "[m]aximizes muscle pump."
To support these advertising statements, MusclePharm marks the labels of both its Wreckage and Combat Pre-Workout products with two patent numbers (U.S. Patent No 6,706,756 ("the '756 Patent") and U.S. Patent No. 7,132,446B1 ("the '446 Patent")). According to MusclePharm, these patents are practiced as a result of the inclusion of VASO6 in the products. As ThermoLife's Complaint explains, directly contrary to MusclePharm's advertising, Wreckage and Combat Pre-Workout do not practice any of the claims in either the '756 or '466 Patent. According to the independent testing that ThermoLife had conducted on VASO6, VASO6 is just common green tea extract; it does not include the isolated compounds or an effective amount of the specific compounds necessary to practice any of the claims in the patents marked on MusclePharm's product labels.
ThermoLife contends that the entire marketing scheme for VASO6 is based on lies and contrary to what is claimed, VASO6 is not patented, not clinically tested, or proven to cause vasodilation, and it certainly has not been shown to provide "maximum pump" as MusclePharm claims. ThermoLife's Complaint asserts that MusclePharm's continued false marketing and false patent marking of VASO6 misleads consumers and creates a market for this ingredient, where none should exist. ThermoLife further alleges that in direct competition with ThermoLife's patented ingredients and technologies MusclePharm relies on lies to market its products and steal business from ThermoLife and products that contain ThermoLife's patented ingredients and technologies. As the Complaint states, without this intentional false advertising, no one would ever buy products that include VASO6 as a marque ingredient, which is, for all intents and purposes, nothing more than a common green tea extract, which provides no benefits that VASO6 falsely claims to provide.
ThermoLife also asserts that Wreckage and Combat Pre-Workout are misbranded. This is because MuslcePharm's false advertising appears on the label of these products. According to the Complaint, MusclePharm's intentional false marketing of these products on the products' labels causes the products to be "misbranded" under 21 U.S.C. § 343(a)(1) in that "the labeling is false and misleading in any particular." And misbranded products cannot be sold in interstate commerce under U.S.C. 21 § 331(a).
When reached for comment, ThermoLife's founder, Ron Kramer, offered the following statement: "It's a tragedy what some companies will do to try and compete with us and with companies who license our ingredients. We look forward to proving all of these accusations in court and hope it will deter others from similar activity."
ThermoLife's Complaint seeks an injunction, barring further false advertising by MusclePharm and actual damages. Furthermore, as a result of MusclePharm's willfully false advertising, ThermoLife also seeks an order from the court disgorging MusclePharm's profits and an award of treble damages.
ThermoLife is represented in the matter by Gregory B. Collins of Kercsmar & Feltus PLLC.
About ThermoLife International
Founded in 1998, ThermoLife is a world leader in patented ingredients and technology for use in dietary supplements, specializing in sports nutrition. ThermoLife controls a global patent portfolio of 27 patents spanning more than 15 countries including more than 450 valid and issued claims on the use of nitrates in dietary supplements. ThermoLife collaborates with leading manufacturers in the sports nutrition and dietary supplement industry to provide innovative ingredients to help offer superior patent-protected products to end users.
SOURCE ThermoLife International, LLC