# Monster Energy Company v. Vital Pharmaceuticals, Inc.

> District Court, C.D. California · April 12, 2023

URL: https://www.frixlaw.com/law-library/cases/9982962

## Case

- **Court:** District Court, C.D. California
- **Decided:** April 12, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 18-1882 JGB (SHKx) Date April 12, 2023
Title Monster Energy Company v. Vital Pharmaceuticals, Inc., et al.

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Not Reported
Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):
None Present None Present

Proceedings: Order (1) GRANTING Plaintiff’s Motion for a Permanent Injunction
(Dkt. No. 901); and (2) VACATING the April 24, 2023 Hearing (IN
CHAMBERS)

Before the Court is Plaintiff Monster Energy Company’s (“Monster”) motion for
permanent injunction against Defendants Vital Pharmaceuticals, Inc. (“VPX”) and John H.
Owoc (“Owoc”) (collectively, “Defendants”). (“Motion,” Dkt. No. 901.) The Court
determines this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R.
7-15. Upon consideration of the papers filed in support of and in opposition to the Motion, the
Court GRANTS the Motion and ENJOINS Defendants as set forth below. The Court
VACATES the hearing set for April 24, 2023.

I. BACKGROUND

The parties are familiar with the extensive procedural and factual history of this case; the
Court relates only the background necessary to understand the Motion.

On September 4, 2018, Monster initiated this action against Defendants Vital
Pharmaceuticals, Inc. (“VPX”) and John H. Owoc (“Owoc”) (collectively, “Defendants”).
(“Complaint,” Dkt. No. 1.) On April 3, 2019, Monster filed a first amended complaint.
(“FAC,” Dkt. No. 61.) On May 20, 2019, the Court granted in part Defendants’ motion to
dismiss the FAC and dismissed Claim 4 and Claims 7 through 9. (“MTD Order,” Dkt. No. 95.)
On April 19, 2022, the Court (1) denied Monster’s partial motion for summary judgment
on its Lanham Act claim; (2) granted in part VPX’s motion for summary judgment on the
Lanham Act claim but only with respect to false statements about the ’466 Patent, granted
VPX’s motion on Monster’s intentional interference of prospective economic advantage claim,
and denied VPX’s motion on all other claims; and (3) granted Mr. Owoc’s motion for summary
judgment on Monster’s claims for intentional interference of prospective economic advantage,
and claims under the California Uniform Trade Secrets Act (“CUTSA”), Cal. Civ. Code § 3426,
et seq., Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836, et seq., and Computer Fraud
and Abuse Act (“CFAA”), 18 U.S.C. § 1030, et seq., against Mr. Owoc, and denied Mr. Owoc’s
motion for summary judgment as to the other claims. (“MSJ Order,” Dkt. No. 740.)

On August 25, 2022, a jury trial began on Monster’s claims. (Dkt. No. 820.) On
September 29, 2022, the jury returned a verdict for Monster. (“Verdict,” Dkt. No. 890.)
Among other findings, the jury found that: (1) Defendants are liable for false advertising under
the Lanham Act; (2) Monster shall be awarded $271,924,174 for damages sustained by
Defendants’ false advertising; and (3) Defendants’ false advertising was willful and deliberate.
(Id.)

On December 8, 2022, Monster filed the Motion. (See Motion.) In support, Monster
filed the declaration of Sourabh Mishra with attached exhibits, (“Mishra Declaration,” Dkt. No.
902), as well as a proposed permanent injunction. (“PPI,” Dkt. No. 901-2.)

On January 23, 2023, VPX opposed. (“Opposition,” Dkt. No. 915.) In support, VPX
filed the following documents:

 Declaration of Nolan Mitchell (“Mitchell Declaration,” Dkt. No. 915-1) with
attached exhibits;
 Declaration of Rick Oberhofer (“Oberhofer Declaration,” Dkt. No. 916) with an
attached exhibit;
 Declaration of Hal Gerson (“Gerson Declaration,” Dkt. No. 917) with an attached
exhibit; and
 Proposed alternative injunction (“DPI,” Dkt. No. 915-35).

On the same day, Mr. Owoc joined VPX’s Opposition. (“Joinder,” Dkt. No. 918.) On
February 23, 2023, Monster replied. (“Reply,” Dkt. No. 925.) In support, Monster filed the
declaration of Amber Munoz with attached exhibits. (“Munoz Declaration,” Dkt. No. 926.)

II. LEGAL STANDARD

Under the Lanham Act, a district court has the “power to grant injunctions, according to
the principles of equity and upon such terms as the court may deem reasonable,” “to prevent a
violation” under 15 U.S.C. § 1125(a) (“Section 1125(a)”). 15 U.S.C. § 1116(a) (“Section
1116(a)”). “A permanent injunction is an extraordinary remedy that may only be awarded upon a
clear showing that the moving party is entitled to such relief.” Server Tech., Inc. v. Am. Power
Conversion Corp., 2017 WL 2181101, at *3 (D. Nev. May 12, 2017) (citing Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (per curiam); see also Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 165 (2010). To obtain a permanent injunction, the moving party must
satisfy a four-factor test: (1) it has suffered irreparable injury; (2) remedies at law are inadequate;
(3) the balance of hardships favors an equitable remedy; and (4) that the public interest would not
be disserved by a permanent injunction. eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391
(2006).

“The ‘traditional principles of equity’ demand a fair weighing of the factors listed above,
taking into account the unique circumstances of each case.” La Quinta Worldwide LLC v.
Q.R.T.M., S.A. de C.V., 762 F.3d 867, 880 (9th Cir. 2014). “As a general rule, a permanent
injunction will be granted when liability has been established and there is a threat of continuing
violations.” MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th Cir. 1993). “[T]he
decision whether to grant or deny injunctive relief rests within the equitable discretion of the
district courts.” N. Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir. 2007).

III. DISCUSSION

The Court first considers whether Monster is entitled to a permanent injunction and
second, whether the PPI is appropriately tailored to enjoin Defendants.

A. Irreparable Harm

Monster asserts that it has suffered irreparable harm because Defendants’ false
advertising has caused it to (1) lose customers, and (2) lose market share. (Mot. at 15.)
Defendants contend that Monster has not shown irreparable harm because: (1) the harms are
purely economic; (2) VPX “abandoned any marketing focus on Super Creatine or creatine”
before the jury rendered its verdict; and (3) VPX’s remediation obviates the need for an
injunction. (Opp’n at 7.)

Under Section 1116(a) of the Lanham Act, a plaintiff who prevails on the merits of a
Lanham Act claim “shall be entitled to a rebuttable presumption of irreparable harm.” 15 U.S.C.
§ 1116(a); Blumenthal Distrib., Inc. v. Comoch Inc., 2023 WL 2356713, at *11 (C.D. Cal. Jan. 24,
2023) (a “plaintiff seeking any injunction shall be entitled to a rebuttable presumption of
irreparable harm upon a finding of violation” under Section 1125(a) “in the case of a motion for a
permanent injunction.”) Here, the jury found Defendants liable for false advertising, an element
of which was injury to Monster and awarded Monster $271,924,174 in lost profits for sales
through April 2022.1 (See “Jury Instructions,” Dkt. No. 889; Verdict at 1.) Given this finding,
Monster is entitled to a “rebuttable presumption of irreparable harm.” Section 1116(a); see also

1 Both parties agree that damages were awarded only up to April 2022. (Opp’n at 10;
Reply at 4.)
Knature Co. v. Duc Heung Grp., Inc., 2021 WL 3913194, at *5 (C.D. Cal. July 2, 2021)
(“Plaintiffs are entitled to a rebuttable presumption of irreparable injury—and therefore no
adequate remedies at law—when they prove a violation of the Lanham Act.”). Defendants
“may, upon a proper showing, overcome” this presumption and demonstrate lack of irreparable
harm by showing “that the alleged injuries are purely pecuniary, or that [they] [] [have] ceased or
will soon cease the infringing activities.” Kahala Franchising, LLC v. Real Faith, LLC, 2022 WL
1605377, at *4 (C.D. Cal. May 20, 2022).

1. Loss of Customers and Market Share

Defendants assert that Monster’s claim that it will continue to lose prospective customers
and suffer decreased market share are purely economic harms, not irreparable harm. (Opp’n at
7.) Monster disagrees and argues that loss of prospective customers and market share
encompasses both intangible and incalculable harms. (Reply at 2.)

a. Customers

“Evidence of threatened loss of prospective customers or goodwill certainly supports a
finding of the possibility of irreparable harm.” Stuhlbarg Int’l Sales Co. v. John D. Brush & Co.,
240 F.3d 832, 841 (9th Cir. 2001) (affirming the district court’s grant of preliminary injunction
where district court found that plaintiff stood to “lose its newfound customers and
accompanying goodwill and revenue”). Defendants argue that loss of prospective customers
constitutes irreparable harm only where it threatens likely “intangible injuries,” “such as
damage to ongoing recruitment efforts and goodwill.” (Opp’n at 8.) But loss of prospective
customers is an intangible injury. Anhing Corp. v. Thuan Phong Co. Ltd., 2015 WL 4517846, at
*23 (C.D. Cal. July 24, 2015) (“Evidence of intangible injury, such as a loss of customers or
damage to a party’s goodwill, can constitute irreparable harm.”); Am. Rena Int’l Corp. v. Sis-
Joyce Int’l Co., 534 F. App’x 633, 636 (9th Cir. 2013) (finding that district court did not abuse its
discretion where it found that irreparable harm will likely result in the absence of preliminary
injunction relief where plaintiff provided “evidence of threatened loss of customers or
goodwill”) (internal alterations omitted); Open Text, S.A. v. Box, Inc., 36 F. Supp. 3d 885, 906
(N.D. Cal. 2014) (the loss of customers as a result of infringing conduct may support a finding of
irreparable harm).

Here, Monster has presented “evidence of threatened loss of prospective customers.”
Stuhlbarg Int’l Sales Co., 240 F.3d at 841. At trial, Monster offered evidence that Defendants’
false advertising of Super Creatine affected Monster’s ability to compete in the market, causing
Monster to lose existing and prospective customers. (Mot. at 16.) For example, numerous
witnesses—including VPX’s own employees—testified that Super Creatine is BANG’s point of
difference, allowing Defendants to distinguish BANG from Monster’s beverages. (Id.; Mishra
Decl., Exs. 20, 23-24, 27, 29-31.) At trial, Monster argued that the Super Creatine difference
creates an unfair competitive disadvantage for Monster, ultimately leading to lost consumers and
sales. (Mishra Decl., Exs. 29-31.) That unfair advantage translates not just to lost consumers and
sales for Monster but also to a false perception by consumers and customers that BANG contains
creatine. (Reply at 2.) Six months after the jury rendered its verdict, Defendants continue to
manufacture, distribute, and advertise BANG cans with the Super Creatine label. (See infra
Section III.A.2-A.3.) Accordingly, unless an injunction is granted, consumers will continue to
believe that BANG contains creatine and view Monster’s products less favorably than they
otherwise would, rendering the threat of future lost customers an intangible irreparable harm.

Defendants argue that Monster’s loss of customers translates to lost sales and, thus,
Monster can easily calculate these lost sales. (Opp’n at 8.) Defendants point to True Organic for
their contention that “statements about customer loss are a claim for loss revenue and profit,
which is redressable through monetary damages.” (Opp’n at 8 (quoting True Organic Prod., Inc.
v. California Organic Fertilizers, Inc., 2019 WL 1023888, at *7 (E.D. Cal. Mar. 4, 2019) (internal
alterations omitted) (“True Organic”).) The Court disagrees that a loss of customers directly
translates to lost sales. A lost customer may constitute the loss of a relationship with a customer
as well as reference to other potential customers. See Chem-Tainer Indus. Inc. v. Wilkin, 1997
WL 715014, at *8 (C.D. Cal. Feb. 24, 1997), dismissed, 20 F. App’x 843 (Fed. Cir. 2001) (“while
lost sales and profits may be compensable through money damages, the loss of customers and
goodwill may not be”). And True Organic is distinguishable. There, the court found no
irreparable harm where the plaintiff failed to provide evidence that it had lost customers or sales
and where the plaintiff failed to explain why any lost sales it may suffer cannot be redressed
through an award of monetary damages. Id. Here, Monster presented evidence that it lost
customers and an award of monetary damages to Monster has not stopped Defendants from
continuing to falsely advertise their products to consumers. See Nutrition Distribution LLC v.
IronMag Labs, LLC, 2018 WL 6264986, at *4 (C.D. Cal. Nov. 16, 2018) (“Monetary damages . .
. would be inadequate to protect the public in the absence of an injunction due to the possibility of
Defendants selling products [with false statements] in the future . . .”) Thus, the Court
concludes that Monster’s loss of customers is an irreparable harm.

b. Market Share

As to Monster’s loss of market share, “injury to market share can constitute irreparable
harm.” Chem-Tainer Indus. Inc., 1997 WL 715014, at *8; Merck Eprova AG v. Brookstone
Pharms., LLC, 920 F. Supp. 2d 404, 432 (S.D.N.Y. 2013) (finding that “[w]hile damages have
partially compensated [plaintiff] for its injuries, damages cannot compensate [plaintiff] for the
enviable market position—and the corresponding decline in its own market position—that
[defendant] has acquired thanks to its false advertising.”); Funai Elec. Co. v. Daewoo Elecs.
Corp., 593 F. Supp. 2d 1088, 1111 (N.D. Cal. 2009), aff’d, 616 F.3d 1357 (Fed. Cir. 2010) (finding
that evidence in the record established that plaintiff has suffered irreparable harm in the form of
loss of market share).

To support its contention that it lost market share, Monster points to evidence presented
at trial showing that VPX grew from a 0.1 market share to a 9.4 market share after launching
BANG with Super Creatine. (Mot. at 17; Mishra Decl., Exs. 21, 27, 31, TX-3689.) Defendants
assert that there is no evidence that Monster will continue to “lose share to VPX.” (Opp’n at 9.)
Defendants highlight recent market data showing the market share performance of certain top
energy drink brands from 2017 through the end of 2022, which they contend demonstrates that
Monster has been able to grow and gain share despite VPX’s advertising. (Id.; Oberhofer Decl.,
Ex. A.) For example, Defendants’ graph shows that from the second quarter of 2021, measured
in dollars, VPX’s share has declined from 8.4 to 4.0 while Monster’s share has increased from
30.9 to 31. (Oberhofer Decl., Ex. A.) The data also shows that since the second quarter of 2022,
VPX’s share has declined from 6.6 to 4.0, while Monster’s share has risen from 30.7 to 31. (Id.)

The Court is not persuaded that an uptick of 0.1 to 0.3 in Monster’s share shows that, as
Defendants assert, that it is unlikely that Monster is now or will be harmed by any loss of market
share. (Mot. at 10.) Indeed, Defendants’ data shows that VPX’s share grew from 0.2 to 9.4
between 2017 to 2019, while Monster’s share dropped from 37.4 to 33.0. (Reply at 3; Oberhofer
Decl., Ex. A.) Thus, it is not clear to the Court that Monster has recovered its loss of share.
Furthermore, because Defendants continue to advertise and sell Super Creatine labeled cans, the
Court cannot find, as Defendants ask it to, that it is unlikely that Monster is now or will be
harmed by any loss of market share. Accordingly, the Court concludes that Monster’s loss of
market share is an irreparable harm.

2. Transition Away from Creatine

Defendants assert that Monster cannot establish irreparable harm because years before
the verdict, VPX had already abandoned any marketing focus on Super Creatine or creatine,
reflecting the economic reality that neither is an important contributor to sales. (Opp’n at 11.)
As support for this contention, Defendants cite to various witnesses’ trial testimony including
Mr. Owoc’s testimony where he stated that VPX’s customers do not buy BANG because it
contains Super Creatine and that is why Defendants stopped marketing Super Creatine four to
five years ago. (Id.; Mitchell Decl., Ex. 3.) The jury rejected this same argument at trial,
awarding Monster damages for false advertising. (See Verdict.) Indeed, rather than transition
away from creatine, Defendants placed the words “Super Creatine” across the front of their
BANG cans and regularly used creatine in social media and other advertisements. (E.g., Exs. 25,
46, 47.) And the Court finds Defendants’ argument disingenuous at best. As recently as
February 27, 2023, five months after the verdict, BANG’s Instagram and Facebook page
contained a picture of a BANG can with the Super Creatine label.2 Similarly, on October 29,
2022, almost a month after the jury’s verdict, Mr. Owoc posted a reel of four cans with the Super

2 Courts can take judicial notice of publicly accessible social media posts. Al-Ahmed v.
Twitter, Inc., 603 F. Supp. 3d 857, 868-869 (C.D. Cal May 20, 2022) (taking judicial notice of
the landing page for plaintiff’s twitter account and a public post on the account—both available
publicly); see Fed. R. Evid. 201(c)(1) (“The court ... may take judicial notice on its own ....”).
Thus, the Court takes judicial notice of BANG’s Instagram profile (@bangenergy), BANG’s
Facebook profile (@BANG Energy), and the February 27, 2023, posts.
Creatine label.3 Thus, the Court is unable to agree with Defendants’ contention that
Defendants’ alleged marketing shift shows that Monster is unlikely to suffer ongoing irreparable
harm because Defendants continue to advertise Super Creatine.

3. Defendants’ Remediation

Defendants’ last argument as to why Monster has failed to establish irreparable harm is
that VPX’s advertising has ceased. See ZapIp LLC v. FlyDive Inc., 2017 WL 8292394, at *4
(C.D. Cal. Oct. 19, 2017) (A presumption of irreparable harm “may be rebutted by evidence
showing that the accused infringer has ceased the allegedly infringing activities”). In support of
its contention, VPX asserts that it has redesigned the BANG label, promotional materials, and
advertising to eliminate any reference to Super Creatine or creatine. (Opp’n at 13; Gerson Decl.
¶ 5.) Defendants also assert that VPX has publicly addressed the jury’s verdict; announced its
decision to stop marketing BANG as containing Super Creatine; has notified its distributors of
the label changes along with the jury verdict; and its retailers are aware of its ongoing transition as
well as the verdict. (Gerson Decl ¶ 25.) VPX also argues that it will not return to the type of
advertising that was the subject of the jury’s verdict because it is now governed by a board of
majority-independent directors, who have instructed VPX to complete the redesign transition.
(Opp’n at 13; Gerson Decl. ¶¶ 4-5.) Thus, Defendants argue, due to VPX’s ongoing remediation
efforts, Monster is unlikely to suffer irreparable harm. (Opp’n at 13.)

The Court acknowledges the efforts that Defendants have taken, but they are insufficient.
When a defendant claims injunctive relief is unwarranted, the defendant “bears the formidable
burden of demonstrating voluntary compliance by showing it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.” AirWair Int’l Ltd. v. ITX USA
LLC, 2021 WL 5302922, at *2 (N.D. Cal. Nov. 15, 2021) (internal citations omitted), appeal
dismissed sub nom. Airwair Int’l, Ltd. v. Pull & Bear Espana, SA, 2022 WL 2165416 (9th Cir.
Apr. 20, 2022). Here, as Defendants admit, VPX is still manufacturing cans with the “Super
Creatine” label and continued to do so until sometime in March 2023. (Gerson Decl. ¶ 9.)
Defendants also intend to sell “Super Creatine” cans through the end of the calendar year. (Id.)
Defendants argue that VPX must continue to sell Super Creatine labeled cans because the
destruction of its existing cans “would cause millions of dollars in losses, severely disrupt VPX’s
supply lines and business relationships, and leave VPX unable to fill existing customer orders or
meet consumer demands.” (Id. ¶ 12.) But Defendants have brought on themselves these
unfortunate consequences through their false advertising.

Furthermore, Defendants refuse to remove their existing false advertising from their
social media accounts. Defendants assert that “[i]t is impossible for VPX to review and eliminate
all of the hundreds of thousands archived and historical social media posts that may include an
image of the legacy [BANG] can or logo.” (Id. ¶ 22.) But VPX does not explain why this is

3 The Court takes judicial notice of the @bangergy.ceo Instagram profile and the October
29, 2022, post.
impossible, especially for its own social media accounts. Instead, VPX states that it “is removing
active content most likely to be seen by consumers . . . [and] expects to complete . . . revisions to
the contents of its website by approximately March 31, 2023.” (Id.) But VPX does not explain
what it means by “active content.” Moreover, even though VPX states that it “publicly
announced” the label changes and jury verdict, (Gerson Decl. ¶ 25), consumers are still being
deceived by its false advertising. For example, consumers continue to repeat the false claim that
BANG contains creatine. (See, e.g., Munoz Decl., Ex. 41 (“The ceo posted a pretty descriptive
video on the whole breakdown. A lot of fancy words in there but it sounded like [Bang]’s got
[creatine] and the lawsuit is more against the word ‘super.’”); Ex. 42 (in December 8, 2022, a
consumer posted on twitter: “A reminder that Bangs have creatine.”).)

Accordingly, the Court is unable to find that Defendants have shown that “it is absolutely
clear” that their wrongful behavior cannot “reasonably be expected to recur”, because their
wrongful behavior is currently occurring. AirWair Int’l Ltd., 2021 WL 5302922, at *2 (finding
that defendant has not submitted evidence to satisfy the “formidable burden” of showing
voluntary cessation is effective “where defendant appears to still have the capacity to sell and/or
market infringing products”). Thus, the Court finds that Defendants have not overcome
Monster’s rebuttable presumption of irreparable harm.

B. Inadequate Remedies

Monster asserts that the remedies at law are inadequate because: (1) Defendants are
causing Monster continuous irreparable harm by continuing to advertise and sale BANG cans
with the Super Creatine label; and (2) VPX’s Chapter 11 bankruptcy makes it unclear when or
even if VPX will be able to compensate Monster for the injuries it has caused. (Mot. at 18-20.)
“The terms inadequate remedy at law and irreparable harm describe two sides of the same coin.
If the harm being suffered by plaintiff . . . is irreparable, then the remedy at law (monetary
damages) is inadequate.” Anhing Corp., 2015 WL 4517846, at *23 (internal quotes omitted); see
also Knature, 2021 WL 3913194, at *5 (Lanham Act entitles plaintiffs to a “presumption of
irreparable injury—and therefore no adequate remedies at law”). “The same evidence
demonstrating irreparable harm suggests that damages are inadequate to remedy Defendants’
[false advertising].” Anhing Corp., 2015 WL 4517846, at *23. For the reasons discussed above
in connection with irreparable harm, the remedies at law are inadequate to compensate Monster
for the harm Defendants’ advertising of Super Creatine continues to cause. See id. (finding that
remedies at law were inadequate where there was a risk that defendant would continue to engage
in infringing conduct).

Indeed, since Defendants’ false advertising occurs through every BANG advertisement
and sale, “[a] legal remedy is inadequate [because] it would require a ‘multiplicity of suits.’”
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1220 (C.D. Cal.
2007). As Monster asserts, if Defendants were allowed to continue falsely advertising Super
Creatine, it is likely that Monster would file seriatim lawsuits to recover for the injuries
Defendants cause. (Mot. at 19.) Defendants argue that VPX’s advertising is not continuous
because it is in the midst of transitioning to new labels and advertising “and soon any conceivable
‘harm’ from the sale of legacy products will be over and can be quantified.” (Opp’n at 15.) But
as the Court discussed above, the irreparable harm is loss of prospective customers and market
shares—ongoing harms that cannot be fully compensated through an award of damages.

The Court is less persuaded by Monster’s second contention that a damages award is
inadequate because VPX’s bankruptcy makes future relief uncertain. (Mot. at 19-20.) “[I]n
some limited circumstances, parties have demonstrated such a strong likelihood that their
opponent will be unable to pay that courts have awarded them equitable relief.” Grokster, 518 F.
Supp. 2d at 1217. “The rationale in such cases must be that an award of monetary damages will
be meaningless, and the plaintiff will have no substantive relief, where it will be impossible to
collect an award for past and/or future infringements perpetrated by a defendant.” Id. But VPX
is undergoing a chapter 11 reorganization, where “[l]iquidation is not the objective” and “the
aim is by financial restructuring to put back into operation a going concern.” Baker v. Gold Seal
Liquors, Inc., 417 U.S. 467, 470 (1974). Here, Monster has offered no proof that damages
“payable through a plan of reorganization is an inadequate remedy” or evidence that VPX
“would be unsuccessful in reorganizing.” In re Columbia Motor Exp., Inc., 33 B.R. 389, 392
(M.D. Tenn. 1983); see Grokster, 518 F. Supp. 2d at 1217 (finding it unlikely that defendant
would be able to compensate plaintiff monetarily because the “undisputed evidence at summary
judgment” demonstrated that “it is highly likely that the award of statutory damages that
ultimately befalls [defendant] in this case will be enormous . . . and would far outstrip the amount
of revenue the company has garnered in recent years.”). Nevertheless, because Defendants
continue to advertise and sell Super Creatine BANG cans, creating an ongoing irreparable harm,
the Court finds that legal remedies are inadequate.

C. Balance of Hardships

“Under the third factor, the Court considers the hardships facing each party by the grant
or denial of a permanent injunction.” WB Music Corp., 2018 WL 2121819, at *2. As to
Monster, unless the Court enters a permanent injunction, Monster will continue suffering harm
without an adequate remedy at law.

As for Defendants, they argue that due to VPX discontinuing its advertising, “the balance
of harms is readjusted, because the potential for economic or other harm to the movant has been
eliminated.” (Opp’n at 16-17 (quoting Ideal Instruments, Inc. v. Rivard Instruments, Inc., 479 F.
Supp. 2d 968, 993 (N.D. Iowa 2007) (finding that any potential harm that might have existed was
substantially reduced by party’s remedial actions)). But as discussed above, Defendants continue
to advertise and sell BANG cans with the Super Creatine label, thus the balance of harms has not
been “readjusted” and the harm has not been eliminated. Furthermore, “there is no harm to a
defendant from an injunction which prevents continuing dissemination of false statements.”
POM Wonderful LLC v. Purely Juice, Inc., 2008 WL 4222045, at *16 (C.D. Cal. July 17, 2008),
aff’d, 362 F. App’x 577 (9th Cir. 2009); see Linotype Co. v. Varityper, Inc., 1989 WL 94338, at
*3 (S.D.N.Y. Aug. 4, 1989) (granting injunction despite defendant’s assurance that false ad had
“run its course”).

Defendants’ second argument is that complying with Monster’s PPI would be
burdensome. (Opp’n at 17.) Defendants contend that they cannot realistically remove the term
creatine within “30 days (or even much longer)” from all cans, physical locations, and media,
because this would result in significant disruptions to Defendants’ business, such as by forcing
them to destroy their cans and leave them unable to fill existing customer orders. (Opp’n at 17,
23.) Monster asserts that Defendants do not need to destroy their inventory, because they need
only to “wrap them in shrink sleeves” to cover the Super Creatine label. (Reply at 9.)
Moreover, while thirty days may be a short timeframe, it has been more than six months since the
jury returned its verdict, meaning that Defendants have had six months to stop selling their Super
Creatine labeled cans and remove their false advertisements. Courts have ordered recalls for less
than that amount of time. See, e.g., Homeland Housewares, LLC v. Euro-Pro Operating LLC,
2014 WL 4187982, at *8 (C.D. Cal. Aug. 22, 2014) (ordering removal of false statements from
the packaging of defendant’s products on sale to consumers and from any of defendant’s
advertisements or commercials within 4 months of the court’s order); United States v. Kennedy,
2007 WL 404915, at *4 (N.D. Cal. 2007) (ordering removal of false advertising from website
within 10 days); PowerFood, Inc. v. Sports Sci. Inst., 1993 WL 13681782, at *10 (N.D. Cal. 1993)
(ordering removal of products from retail stores within 10 days); Safeworks, LLC v. Teupen
Am., LLC, 717 F. Supp. 2d 1181, 1194 (W.D. Wash. 2010) (ordering removal of promotional and
other materials within 20 days). But considering the burden that may fall on Defendants to
remove all false advertising and cans nationwide, the Court will give Defendants an additional 30
days to complete the transition. Given the extension of time that the Court has granted
Defendants and that there is no harm to Defendants for being enjoined from advertising false
statements, the balance of hardships favors a grant of the permanent injunction.

D. Public Interest

Lastly, the Court considers whether a permanent injunction serves the public. Grokster,
518 F. Supp. 2d at 1222. “There is a strong public interest in preventing false advertising of
products in the marketplace.” POM Wonderful, 2008 WL 4222045, at *16 (finding that where
defendant has made false claims as to the contents of its product and the public is deceived into
paying for what it believes is an accurate representation of the product, the public interest favors
injunctive relief to prevent the false advertising of defendant’s product).

Here, the jury found that the elements of false advertising—including falsity, deception,
and materiality—were met. (See Verdict.) Yet Defendants have continued to mislead
consumers about Super Creatine. (See supra Section III.A.2-A.3.) Thus, “the public . . . will
benefit from an injunction protecting consumers and competitors from Defendants’ false
advertising.” Nutrition Distrib. LLC, 2018 WL 6264986, at *4; see also Paisa, Inc. v. N & G
Auto, Inc., 928 F. Supp. 1009, 1013 (C.D. Cal. 1996) (“strong public interest in preventing
consumer confusion and fraud”). Defendants argue that an injunction that destroys their
inventory and leaves VPX unable to fill customer orders, only denies consumers their preferred
energy drink. (Opp’n at 18 (citing Juicero, Inc. v. iTaste Co., 2017 WL 4676280, at *7 (N.D. Cal.
Oct. 17, 2017) (finding little public interest where the plaintiff sought a preliminary injunction
enjoining all sales of the product at issue because the injunction would deprive the public of
“what may be its only option” for juicing). Defendants’ reliance on Juicero is misplaced because
unlike there, Monster’s injunction does not prevent consumers from buying BANG; it prevents
Defendants from misleading consumers.

Defendants also contend that Monster’s PPI burdens legitimate and protected speech by
requiring VPX to remove social media posts for including an image of a BANG can with the
Super Creatine label because an injunction that regulates and restrains social media activities is
contrary to the public interest.4 (Opp’n at 18.) “The protections afforded commercial speech by
the First Amendment are not unlimited. False or misleading commercial speech is not protected
speech; only commercial speech that concerns ‘lawful activity’ and is ‘not misleading’ is
protected by the First Amendment.” Martin v. Tradewinds Beverage Co., 2017 WL 6816608, at
*6 (C.D. Cal. Sept. 5, 2017) (quoting Central Hudson Gas & Elec. v. Public Serv.Comm’n, 447
U.S. 557, 566 (1980)).

Speech is commercial if “(1) the speech is admittedly advertising, (2) the speech
references a specific product, and (3) the speaker has an economic motive for engaging in the
speech.” CrossFit, Inc. v. Nat’l Strength & Conditioning Ass’n, 2016 WL 5118530, at *6 (S.D.
Cal. Sept. 21, 2016). Here, Defendants’ social media posts concerning Super Creatine are
commercial speech. For example, Monster submitted as evidence an @bangenergy Instagram
post shared on February 20, 2023, with an image of a BANG can with the Super Creatine label
and the caption reads: “With a blast of berry flavors in every sip, you won’t believe it has ZERO
sugar, carbs, or calories! Tag a friend in the comments who needs to try this flavor!” (Munoz
Decl., Ex. 79.) That social media post is advertising Defendants’ product by encouraging
consumers to tell their friends to buy the BANG can with the Super Creatine label—a label that
misleads consumers into believing that the can contains creatine. See H.I.S.C., Inc. v. Franmar
Int’l Importers, Ltd., 2022 WL 104730, at *5 (S.D. Cal. Jan. 11, 2022) (finding that a Facebook
post that included a photograph of a woman holding the product at issue with a caption that
stated the product is a “great holiday gift” is commercial speech because the image is trying to
sell the product). And Defendants have an economic motive for engaging in this speech because
it would increase their sales. Because that social media post is “misleading commercial speech,”
it is not “protected speech.” Martin, 2017 WL 6816608, at *6. Thus, an injunction that requires
Defendants to remove social media posts that include a false advertisement, such as the Super
Creatine labeled can, is in the public’s interest and does not burden protected speech.

4 The cases that Defendants cite in support of their contention are inapposite to their
commercial social media posts. (Opp’n at 18-19.) See Klein v. City of San Clemente, 584 F.3d
1196, 1208 (9th Cir. 2009) (addressing city ordinance restricting right to express political views);
Packingham v. North, 137 S. Ct. 1730, 1736-37 (2017) (addressing statute prohibiting sex
offenders from accessing social media).
Defendants also contend that Monster’s PPI prevents Defendants and others from
accurately discussing or criticizing scientific research or engaging in legitimate scientific debate,
which burdens free speech and is contrary to the public’s interest. (Opp’n at 19-20.) The Court
disagrees and explains its reasoning below. (See infra Section III.E.1.) In sum, the public interest
favors granting a permanent injunction.

Overall, the four factors support entering a permanent injunction against Defendants.
Plaintiff has established irreparable injury, shown the remedies of law are inadequate, the balance
of hardships tips in their favor, and the public interest is served by an injunction. Accordingly,
the Court GRANTS Plaintiff’s Motion.

E. Scope of the Injunction

Monster seeks a permanent injunction that: (1) enjoins false statements; (2) orders
removal of false statements; (3) orders corrective advertising; and (4) orders compliance. (See
PPI.) Defendants argue that the scope of Monster’s injunction is convoluted, overboard, and
impermissibly burdens and restrains non-commercial and protected speech activities. (Opp’n at
19.) The Court agrees with Defendants that Monster’s PPI is, in part, overbroad and makes
revisions below.

1. Enjoining False Statements

Federal Rule of Civil Procedure 65(d) (“Rule 65(d)”) provides that every order granting
an injunction must “describe in reasonable detail . . . the act or acts restrained or required.” An
injunction should also provide “fair and well-defined notice” of whom or what it enjoins. Reno
Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1132 (9th Cir. 2006). Generally, “an
injunction must be narrowly tailored to remedy only the specific harms shown by the plaintiffs
rather than to enjoin all possible breaches of the law.” iYogi Holding Pvt. Ltd. V. Secure Remote
Support, Inc., 2011 WL 6291793, at *19 (N.D. Cal. Oct. 25, 2011), report and recommendation
adopted sub nom. Iyogi Holding PVT Ltd. V. Secure Remote Support Inc., 2011 WL 6260364
(N.D. Cal. Dec. 15, 2011).

Courts routinely enjoin defendants from continuing to advertise or promote their
products using the specific claims found to be false. See U-Haul Int’l, Inc., 793 F.2d at 1043
(enjoining defendant from publishing “any advertisement” that “represents, either expressly or
impliedly,” the “[f]alse[] or deceptive[]” statements at issue); Harbor Breeze Corp. v. Newport
Landing Sportfishing, Inc., 2019 WL 4570033, at *3 (C.D. Cal. Aug. 26, 2019), rev’d in part on
other grounds, 28 F.4th 35 (9th Cir. 2022) (issuing “an injunction that focuses on the kind of
advertising that was at issue at trial”). Here, the jury found Defendants’ advertising of Super
Creatine to be false or misleading. (See Verdict; Jury Instructions.) Accordingly, an injunction
that prohibits Defendants from falsely or deceptively claiming that Super Creatine is creatine,
that BANG drinks contain creatine, and that BANG drinks or Super Creatine provide the
physical, mental, health, or other benefits of creatine, is appropriate.

Defendants contend that the below underlined phrases in paragraph 1 of Monster’s PPI
are beyond the scope of the litigation, have only a tenuous connection to any commercial
purpose, do not address any irreparable harm to Monster, and could prohibit true statements.
(Opp’n at 19-20.) Paragraph 1 of the PPI states:

The Enjoined Persons are permanently enjoined from expressly or impliedly using
the word ‘creatine’—whether alone or together with other words—in selling,
offering to sell, marketing, promoting, or advertising any BANG energy drink or
any other beverage purporting to contain creatyl-L-leucine, Super Creatine,
creatine, any form or purported form of creatine, a derivative of creatine, a
precursor of creatine, or creatine bonded to L-leucine or any other amino acid or
molecule (“BANG Drinks”), including, but not limited to: (1) on any BANG
Drinks cans, labels, or packaging; (2) in any presentations, messages, or other
communications with third parties. . . (3) in physical locations, including, but not
limited to, retail stores . . . (4) in point-of-sale materials, including, but not limited
to, free standing display units, . . . and (5) in any media, including, but not limited
to, print, broadcast, the internet . . . .

(PPI ¶ 1 (emphasis added).)

The Court agrees with Defendants in part. As currently proposed, the PPI “seems to
prohibit future [] advertising even if truthful.” U-Haul Int’l, Inc., 793 F.2d at 1042 (modifying
an injunction by adding the words “falsely or deceptively” to enjoin defendants from publishing
or disseminating any advertisement or media press release that “falsely or deceptively
represents, either expressly or impliedly, that [defendant’s] trucks or trailers are safer than all U-
Haul trucks or trailers”). For example, the PPI would enjoin Defendants from ever using “any
form or purported form of creatine” in their beverages, even if there was no deception. The
Court is mindful of its obligation to prevent Defendants “from misleading the public in the future
with its deceptive ads. But [the Court] can fulfill that obligation while protecting Defendants’
First Amendment rights—and simultaneously increase the ‘informed and reliable
decisionmaking’ that honest advertising can provide.” Id. (quoting Standard Oil Co. v. FTC, 577
F.2d 653, 662 (9th Cir.1978)). Thus, the Court will add the words “falsely and deceptively” to
the PPI to avoid prohibiting future truthful advertising. Furthermore, although the Court
acknowledges that this litigation focused on Defendants’ BANG energy drink and not “any other
beverages,” the Court finds that keeping the language “any other beverage” with the addition of
the phrase “falsely or deceptively” will both protect the public from misleading advertisements
as well as allow Defendants to engage in truthful advertising of their beverage products. Thus,
the Court modifies paragraph 1 of the PPI as follows:5

5 Additions are italicized, deletions are bracketed.
The Enjoined Persons are permanently enjoined from falsely or deceptively using,
either expressly or impliedly, [using] the word ‘creatine’—whether alone or
together with other words—in selling, offering to sell, marketing, promoting, or
advertising any BANG energy drink or any other beverage purporting to . . . .

Next, Defendants contend that paragraph 2 of the PPI lacks any clear limitation to
commercial or false speech, harm to Monster, or the advertising at issue because it prohibits the
enjoined persons from “implying . . . [in] promoting. . . BANG Drinks . . . in the United States
that . . . creatyl-l-leucine . . . provides the . . . benefits of creatine or otherwise . . .” (Opp’n at
20.) It is unclear to the Court what the phrase “or otherwise” refers to, and because it is
ambiguous, the Court will delete that phrase from the PPI wherever it is vague. See ALPO
Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 972 (D.C. Cir. 1990) (because commercial
speech is entitled to appropriate protection under the First Amendment, an injunction
restraining false or misleading speech must be narrowly tailored to “cover only the speech most
likely to deceive consumers and harm [the plaintiff]”). Furthermore, to avoid prohibiting future
advertising that is truthful commercial speech, here too, the Court will add the phrase “falsely or
deceptively.” Accordingly, the Court modifies paragraph 2 of the PPI as follows:

Without in any way limiting the generality of the restraint set forth in paragraph 1,
the Enjoined Persons are permanently enjoined from falsely or deceptively stating,
implying, depicting, or otherwise communicating in selling, offering to sell,
marketing, promoting, or advertising in the United States that: (1) BANG Drinks
contain “Super Creatine,” creatine, any form or purported form of creatine, a
derivative of creatine, a precursor of creatine, or creatine bonded to L-leucine or
any other amino acid or molecule; (2) BANG Drinks provide the physical, mental,
health, or any other benefits of creatine [or otherwise]; (3) “Super Creatine” is
creatine, any form or purported form of creatine, a derivative of creatine, a
precursor of creatine, or creatine bonded to L-leucine or any other amino acid or
molecule; (4) “Super Creatine” provides the physical, mental, health, or any other
benefits of creatine [or otherwise]; (5) creatyl-Lleucine is “Super Creatine,”
creatine, any form or purported form of creatine, a derivative of creatine, a
precursor of creatine, or creatine bonded to L-leucine or any other amino acid or
molecule; and (6) creatyl- L-leucine provides the physical, mental, health, or any
other benefits of creatine [or otherwise] (together, the “Enjoined Claims”).

Defendants further contend that paragraph 2 of the PPI burdens truthful discussions
concerning ongoing scientific research and developments regarding creatyl-L-leucine (“CLL”)
and creatine forms, “‘about which there is legitimate ongoing scientific disagreement.’” (Opp’n
at 20 (quoting ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 498 (2d Cir. 2013)
(“ONY, Inc”).) And that Mr. Owoc has “legitimate commercial and noncommercial interests in
CLL and creatine research that go beyond the promotion of BANG, which the injunction
needlessly burdens.” (Opp’n at 20.) But ONY, Inc. is inapposite. There, the Court addressed
conclusions made by a speaker and author that were drawn from non-fraudulent data and found
that those conclusions were not false advertising. Id. Here, the injunction is limited to
advertising and promotional statements, not conclusions made from scientific articles. As
Defendants’ own cited case law states “[u]nder the Lanham Act, a court may issue an injunction
to prevent the use of a ‘false or misleading representation of fact’ in ‘commercial advertising or
promotion.’” Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1323 (11th Cir. 2010) (finding that an
injunction was too broad because “[n]othing in the language of the injunction explicitly limit[ed]
its scope to advertising or promotional statements”). Here, the injunction is tailored to enjoin
false statements made in “selling, offering to sell, marketing, promoting, or advertising” BANG
drinks. (PPI ¶¶ 1, 2, 5.a.i.) With the addition of the phrase “falsely or deceptively,” Defendants
are not prevented from ever speaking about their views on CLL or creatine. They are only
enjoined from doing so in a false or deceptive manner when “selling, offering to sell, marketing,
promoting, or advertising,” BANG drinks. See TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d
820, 829 (9th Cir. 2011) (“Because false or misleading commercial statements aren’t
constitutionally protected,” “permanent injunctions prohibiting deceptive advertising” “rarely
raise First Amendment concerns.”); U-Haul Int’l, Inc., 793 F.2d at 1042 (“Nothing is clearer in
the emerging law of commercial free speech than that false or misleading commercial speech is
clearly subject to restraint.”)(internal quotes omitted).

Defendants’ next contention is that the social media pages, events, and communications
that VPX uses to promote BANG “are also used for other products and purposes, making it
difficult to draw lines for notice and enforcement purposes.” (Opp’n at 21-22.) But Defendants
do not explain how being enjoined from falsely or deceptively making statements in advertising or
selling BANG drinks makes it difficult to draw lines for notice and enforcement purposes and the
Court is unpersuaded that the injunction creates such issues. Defendants also assert that the PPI
is similar in over broadness to an injunction at issue in ALPO Petfoods, Inc., 913 F.2d at 972
(“ALPO”). (Opp’n at 21-22.) There, the district court issued an injunction that permanently
barred the defendant and its associates “from making any advertising or other related claims that
are false, misleading, deceptive or made without substantiation in fact concerning the effects of
[defendant’s] dog food products on hip joint formation, hip joint . . . and similar conditions.” Id.
at 971 (emphasis added). To ensure that the injunction covered only the speech most likely to
deceive consumers and harm the plaintiff, the D.C. Circuit remanded the injunction for removal
of the words “or other related” to limit the injunction to advertising. Here, unlike the injunction
at issue in ALPO, the injunction is tailored to enjoining false statements made in “selling,
offering to sell, marketing, promoting, or advertising” BANG drinks, which is the speech that
will most likely deceive consumers and harm Monster. See Osmose, Inc., 612 F.3d at 1323
(narrowing injunction to commercial advertisements and promotions to avoid any possible First
Amendment concerns). Accordingly, the Court’s modifications to the PPI address Defendants’
First Amendment concerns.6

6 The Court notes that Defendants argue that Monster’s brief confirms that the
injunction it seeks burdens and penalizes non-commercial speech. (Opp’n at 21.) In its briefing,
Monster contends that Defendants continue to make false claims by highlighting an Instagram
2. Removal of False Statements

Paragraph 4 of the PPI requires Defendants to: (1) remove the word “creatine” from all
BANG drinks cans, labels, and packaging; (2) remove from all physical locations and web-based
points of sale all cans, labels, packaging, and POS Material for BANG drinks that use or contain
the term creatine; and (3) remove from all media all material selling, offering to sell, marketing,
promoting, or advertising any BANG drinks that use or contain the term creatine within thirty
days of the issuance of the injunction. (PPI ¶ 4.) Defendants assert that it is impossible for them
to meet these requirements. (Opp’n at 23.)

As to the first requirement that Defendants remove the word “creatine” from all BANG
labels and packaging, Defendants have already produced a redesigned can with no mention of the
words Super Creatine or creatine on its BANG labels, packaging, and advertising. (Opp’ at 4;
Gerson Decl. ¶¶ 5-7.) Thus, this requirement is not impossible for Defendants to meet since
they’re already in the process of meeting it. The Court notes that Monster asserts that the
redesigned BANG label will continue to deceive consumers because it lists CLL as an ingredient
and it shows the seal and number for the Super Creatine patent. (Reply at 5.) The Court is

video posted by Owoc on @bangenergy.ceo on November 4, 2022, that has since been taken
down by Defendants. (Opp’n at 21.) Defendants contend that because Owoc’s video is not
purely commercial as it does more than propose a commercial transaction by including his
critiques about Monster’s litigation tactics, his opinions on Defendants’ and Monster’s studies,
and VPX’s reorganization, then it is entitled to full First Amendment protection. (Opp’n at 21
(citing Riley v. Nat’l Fed’n of the Blind, Inc., 487 U.S. 781, 796 (1988) (“Riley”).) The Court
need not decide whether the injunction enjoins such a video since the video is no longer public.
But the Court will note that Owoc’s statement in the video that Super Creatine is “just like
creatine monohydrate” seems to be misleading and not inextricably entwined with pure speech
such that it would be entitled to full First Amendment protection. See Bd. of Trustees of State
Univ. of New York v. Fox, 492 U.S. 469, 474 (1989) (finding that Tupperware presentations that
had both a commercial aspect (the presentations sold houseware) and a noncommercial aspect
(the presentations discussed subjects such as how to run an efficient home) were not inextricably
intertwined and thus the presentations were not “entitled to the constitutional protection
afforded noncommercial speech.”) Communications can “‘constitute commercial speech
notwithstanding the fact that they contain discussions of important public issues….[the Supreme
Court] [has] made clear that advertising which links a product to a current public debate is not
thereby entitled to the constitutional protection afforded noncommercial speech.’” Id. (quoting
Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 67-68 (1983)). And the Court reiterates that
misleading commercial speech is not entitled to the constitutional protection afforded
noncommercial speech. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New
York, 447 U.S. 557, 566 (1980) (“For commercial speech to come within [the First Amendment],
it at least must concern lawful activity and not be misleading.”).
unpersuaded that Defendants should be required to remove CLL as an ingredient or its patent
number. Defendants are entitled to include CLL and its patent number in their drinks, but they
are not entitled to falsely claim that CLL is something it is not. Thus, because the redesigned
label does not mention the word “creatine,” it sufficiently addresses the false advertising at
issue: that CLL or “Super Creatine” is creatine.

Next, Defendants argue that they cannot realistically remove the term creatine within
“30 days (or even much longer)” from all cans, physical locations, and media. (Opp’n at 23.) As
the Court discussed above, in light of the burden that may fall on Defendants to remove all false
advertising nationwide, the Court will give Defendants an additional 30 days to complete the
transition. (See supra Section III.C.)

Defendants further assert that the requirement to remove from all media “all videos and
pictures showing the Bang Drinks can, label, or packaging” is overbroad because they cannot
police the internet to remove every image of the Super Creatine can or reference to Super
Creatine. (Opp’n at 23.) As written, the PPI requires the “potentially Herculean task” of
removing all BANG creatine references from the internet without regard to who shared or posted
such content. ADG Concerns, Inc. v. Tsalevich LLC, 2018 WL 4241967 (N.D. Cal. 2018)
(finding injunction overbroad where it required the enjoined parties to take “all action” to
“remove from the Internet” infringing marks; the court instead ordered defendant to “take all
action to remove [marks] from its websites or storefronts”); see Iyogi Holding PVT Ltd., 2011
WL 6260364 (revising a proposed injunction to omit the required deletion of all postings
referring to plaintiff by anyone because such a deletion is not aimed at postings by defendant or
its agents and is therefore overbroad). Accordingly, the Court revises paragraph 4 of the PPI as
follows:

Within [thirty (30)] sixty (60) days of the issuance of this Permanent Injunction:
a. The Enjoined Persons must remove the term “creatine,” whether alone
or together with other words that state, imply, depict, or otherwise communicate
the Enjoined Claims, from all BANG Drinks cans, labels, and packaging;
b. The Enjoined Persons must remove and/or cause[d] to be removed from
all physical locations and web-based points of sale, including, but limited to,
websites, retail stores, trade shows, expositions, experiential events, fitness
clubs, and gyms, all cans, labels, packaging, and POS Material for BANG
Drinks that use or contain the term “creatine,” whether alone or together
with other words [and/or] that state, imply, depict, or otherwise
communicate the Enjoined Claims and that were placed by the Enjoined
Persons or at the direction of the Enjoined Persons; and
c. The Enjoined Persons must remove from all Media all material selling,
offering to sell, marketing, promoting, or advertising any BANG Drinks—
including all videos and pictures showing the BANG Drinks can, label, or
packaging—that use or contain the term “creatine,” whether alone or
together with other words[, and/or] that state, imply, depict, or otherwise
communicate the Enjoined Claims that were posted by the Enjoined Persons or
at the direction of the Enjoined Persons.

3. Corrective Statement

The PPI requires Defendants to within “sixty (60) days of the issuance” of the injunction
to post a corrective statement “on all webpages they use to sell, offer to sell, market, promote, or
advertise any BANG Drinks . . . and on all their social media accounts” the language below:

In September 2022, a jury issued a unanimous verdict finding that Vital
Pharmaceuticals, Inc. (d/b/a Bang Energy) (“VPX”) and Chief Executive Officer
John H. “Jack” Owoc willfully and deliberately engaged in false advertising by
claiming that the BANG energy drink contains creatine, contains “Super
Creatine,” and provides the benefits of creatine. The United States District Court
for the Central District of California has permanently enjoined VPX and Mr. Owoc
from selling, offering to sell, marketing, promoting, or advertising BANG as
containing creatine, as containing “Super Creatine,” or as providing the benefits of
creatine.

(PPI ¶ 5.a.i.) The PPI also requires the following:

Defendants must deliver to all retailers, e-commerce websites, brokers,
distributors, dealers, wholesalers, importers, influencers, and other non-consumers
who they have worked with to sell, offer to sell, market, promote, or advertise
BANG Drinks a written, signed notice, in the form attached as Exhibit A, that
includes a copy of this Permanent Injunction. For at least a period of one (1) year,
Defendants have an ongoing obligation to deliver a written, signed notice, in the
form attached as Exhibit A, that includes a copy of this Permanent Injunction to all
retailers, e-commerce websites, brokers, distributors, dealers, wholesalers,
importers, influencers, and other non-consumers who Defendants work with to sell,
offer to sell, market, promote, or advertise BANG Drinks.

For at least a period of one (1) year, Defendants shall cause the Corrective
Statement to be published in any presentations (including to retailers, potential
retailers, distributors, and potential distributors) that they and/or the Enjoined
Persons use to sell, offer to sell, market, promote, or advertise BANG Drinks.

For at least a period of one (1) year, Defendants must make available copies of this
Permanent Injunction at all U.S. trade shows and professional meetings attended
by Defendants and/or the Enjoined Persons. The Permanent Injunction shall be
placed in a prominent location at Defendants’ display or booth at each such trade
show and/or professional meeting. The copies of the Permanent Injunction shall
not be accompanied by any other materials selling, offering to sell, marketing,
promoting, or advertising any product or service.

(PPI ¶¶ 5.b-5.d.) Defendants first argue that a corrective statement is unnecessary because VPX
has already advised consumers via social media of the verdict and its basis, notified distributors,
and announced to the public that it will no longer advertise BANG as containing Super Creatine.7
(Opp’n at 24; Gerson Decl. ¶¶ 13, 14, 25-27.) Although the Court acknowledges that Defendants
have taken corrective steps, as the Court discussed above, Defendants continue to falsely
advertise and sell BANG cans with the Super Creatine label. (See supra III.A.2-3.) And some
consumers continue to believe and repeat Defendants’ false advertising— that BANG energy
drinks have creatine. (See, e.g., Munoz Decl., Ex. 42 (in December 8, 2022, a consumer posted
on twitter: “A reminder that Bangs have creatine.”).) Unlike Defendants’ cited cases where
courts have found corrective statements unnecessary because the defendants engaged in
significant remediation8, here the Court finds a corrective statement appropriate to “remedy
lingering confusion caused by” Defendants’ past and ongoing deception. TrafficSchool.com,
Inc. v. Edriver Inc., 653 F.3d 820, 830 (9th Cir. 2011) (a “splash screen” bearing a disclaimer on
defendant’s website is justified “so long as it helps to remedy lingering confusion caused by
defendants’ past deception”).

However, the Court finds unnecessary PPI ¶¶ 5.c.-5.d., which require Defendants to
share a corrective statement in all of their presentations and to make available copies of the
injunction at all U.S. trade shows and professional meetings attended by the Defendants for at
least a year. The “purpose of an injunction is to ensure that past wrongdoing is not repeated, not
to further punish the wrongdoer.” Merck Eprova AG, 920 F.Supp.2d at 432. The Court sees no
need for such requirements because the PPI already orders Defendants to “deliver to all retailers,
e-commerce websites, brokers, distributors, dealers, wholesalers, importers, influencers, and
other non-consumers who they have worked with to sell, offer to sell, market, promote, or
advertise BANG Drinks a written, signed notice” “that includes a copy of” the permanent
injunction. (PPI ¶ 5.b.) Accordingly, the Court will delete PPI ¶¶ 5.c.-5.d.

7 In their briefing, Defendants do not distinguish between the PPI’s short corrective
statement and the longer notice that would need to be sent to, among others, retailers and
distributors. The Court assumes that its arguments for both corrective statements are the same.

8 See In re Hain Celestial Seasonings Prods. Consumer Litig., 2017 WL 11633199 at *4
(C.D. Cal. 2017) (finding plaintiffs’ injunctive claim moot because defendant removed the
misleading statement from all of its products, shipped out new products to nationwide
distributors and retailers, scrubbed all the misleading labels from its own website and social media
accounts, and the general manager of the product swore that defendant had no plans for
reintroducing the misleading statement in its packaging); see also Eastman Chem. Co. v.
PlastiPure, Inc., 969 F. Supp. 2d 756, 771 (W.D. Tex. 2013) (defendant “engaged in significant
amounts of corrective advertising”).
Defendants’ second argument is that being required to share the corrective statement for
“at least” a year regardless of Defendants’ changed practices or any harm to Monster burdens
protected content. (Opp’n at 24-25.) TrafficSchool.com, Inc. is instructive. 653 F.3d at 830.
There, the Ninth Circuit found that a “splash screen” imposed on every page of the defendant’s
website raised First Amendment concerns because it erected a barrier to all content on the
defendant’s website, “not merely that which [was] deceptive.” Id. The court explained that if
all the remaining harm to the plaintiff dissipated, a permanent splash screen would “burden
protected speech without justification, thus burdening more speech than necessary.” Id. The
court instructed the district court to “reconsider the duration of the splash screen in light of any
intervening changes in the website’s content and marketing practices, as well as the dissipation of
the deception resulting from past practices.” Id. at 831.

Here, the Court agrees that the requirement of sharing the proposed corrective
statements “[f]or at least a period of one (1) year” raises First Amendment concerns. (PPI ¶
5.a.) Once Defendants remove within 60 days of this order their false advertising from all cans,
labels, packaging, physical locations, and media, the harm to Monster will likely be greatly
reduced, and sharing corrective statements for at least a year will “burden speech without
justification.” TrafficSchool.com, Inc., 653 F.3d at 830. Thus, to “tailor the injunction so as to
burden no more protected speech than necessary,” the Court will reduce the length of time that
Defendants must share the corrective statements from one year to one month to remedy any
lingering confusion by consumers and non-consumers. Id.

Defendants third argument is that unlike the corrective splash screen in
TrafficSchool.com,9 Monster’s proposed corrective statement provides no information to
accompany or counteract any consumer “deception” but serves only to remind the public of the
jury’s verdict. (Opp’n at 25.) The Court disagrees. The corrective statements help dispel any
lingering confusion that BANG drinks contain creatine or provide the benefits of creatine.

Accordingly, the Court modifies the PPI as follows:10

Within sixty (60) days of the issuance of this Permanent Injunction:
a. For [at least] a period of one (1) [year] month, Defendants must post on all
webpages they use to sell, offer to sell, market, promote, or advertise any
BANG Drinks (including bangenergy.com and vpxsports.com) and on all
their social media accounts (including Instagram, TikTok, YouTube,
Facebook, and Twitter) the language in paragraph 5(i) below (the

9 In TrafficSchool.com, the splash screen stated: “YOU ARE ABOUT TO ENTER A
PRIVATELY OWNED WEBSITE THAT IS NOT OWNED OR OPERATED BY ANY
STATE GOVERNMENT AGENCY.” 653 F.3d at 829.

10 The Court notes that Exhibit A is attached to this order.
“Corrective Statement”). The Corrective Statement shall be: in a font size
at least [50%]11 as large as the most prominent language on the page; and
immediately adjacent to the most prominent language on the landing page
of each website or pinned or otherwise saved as the first post on each social
media account. For avoidance of doubt, if multiple webpages on a website
sell, offer to sell, market, promote, or advertise BANG Drinks, Defendants
must include the Corrective Statement on each such webpage.
i. In September 2022, a jury issued a unanimous verdict finding that
Vital Pharmaceuticals, Inc. (d/b/a Bang Energy) (“VPX”) and
former Chief Executive Officer John H. “Jack” Owoc willfully and
deliberately engaged in false advertising by claiming that the BANG
energy drink contains creatine, contains “Super Creatine,” and
provides the benefits of creatine. The United States District Court
for the Central District of California has permanently enjoined VPX
and Mr. Owoc from falsely or deceptively selling, offering to sell,
marketing, promoting, or advertising BANG as containing creatine,
as containing “Super Creatine,” or as providing the benefits of
creatine.
b. Defendants must deliver to all retailers, e-commerce websites, brokers,
distributors, dealers, wholesalers, importers, influencers, and other non-
consumers who they have worked with to sell, offer to sell, market, promote,
or advertise BANG Drinks a written, signed notice, in the form attached as
Exhibit A, that includes a copy of this Permanent Injunction. For at least a
period of one (1) [year] month, Defendants have an ongoing obligation to
deliver a written, signed notice, in the form attached as Exhibit A, that
includes a copy of this Permanent Injunction to all retailers, e-commerce
websites, brokers, distributors, dealers, wholesalers, importers, influencers,
and other non-consumers who Defendants work with to sell, offer to sell,
market, promote, or advertise BANG Drinks.

6. Enjoined Persons

The PPI defines the Enjoined Persons as:

Defendant Vital Pharmaceuticals, Inc. (“VPX”), Defendant John H. “Jack” Owoc
(“Mr. Owoc”), and all Defendants’ officers, agents, servants, employees,
consultants, representatives, parent companies, owners, subsidiaries, affiliates, and
attorneys, and other persons acting in concert with them who receive actual notice

11 The Court finds the requirement to issue the corrective statement in a font size at least
50% as large as the most prominent language on Defendants’ media pages excessive and
unnecessary.
of this Permanent Injunction by personal service or otherwise (together, the
“Enjoined Persons”) . . .

(PPI at 1.) Defendants first argue that the definition of Enjoined Persons is overbroad and
unworkable. Specifically, Defendants argue that the phrase “other persons acting in concert with
[Defendants] who receive actual notice of the injunction”, (PPI at 1), is a formulation that courts
have rejected as “vague and overly broad” because it “require[s] action (rather than inaction)”
and “demand[s] an unknown number of persons to do something.” (Opp’n at 25 (quoting ADG
Concerns Inc., 2018 WL 4241967 *11 (revising a paragraph in a proposed injunction to instead of
requiring those in active concert, only requiring “. . . [defendant], through its owner(s) and
director(s),” “to take all action to remove from its websites or storefronts any reference to any of
Health Concerns’ products, or any of Health Concerns’ trademarks”)); see Safeworks, LLC v.
Teupen Am., LLC, 717 F. Supp. 2d 1181, 1193 (W.D. Wash. 2010) (requiring those acting in
concert or participation with defendants to “refrain from” using in connection with their
products any false or deceptive designation). But other courts have required an unknown
number of persons in active concert to take action. See United States v. Kennedy, 2007 WL
404915, at *4 (N.D. Cal. Feb. 2, 2007) (ordering “those persons in active concert or participation
with [defendant]: (1) to remove from his website . . . false commercial speech. . .; (2) to display
prominently on the first page of his website” a copy of the injunction order; and (3) “to maintain
the purged website”); PowerFood, Inc. v. Sports Sci. Inst., 1993 WL 13681782, at *10 (N.D. Cal.
Mar. 11, 1993) (ordering that “all other persons in active concert or participation with
[defendant], shall cause all [of defendant’s] products bearing the mark [at issue] to be removed
from sale, including removal of products from wholesale and retail stores”). Furthermore, Rule
65(d) permits injunctions enjoining those “in active concert or participation.” Rule 65(d)(2)
(“[e]very order granting an injunction . . . is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those persons in active concert or
participation with them who receive actual notice of the order by personal service or otherwise.”)

Rule 65(d) “derives from the ‘common-law doctrine that a decree of injunction not only
binds the parties defendant but also those identified with them in interest, in “privity” with
them, represented by them or subject to their control.’” Vance v. Block, 881 F.2d 1085 (9th Cir.
1989) (quoting Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945)). “In essence it is that
defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors,
although they were not parties to the original proceeding.” Id. at 14 (internal quotes omitted);
see Inst. of Cetacean Rsch. v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir.
2014) (“A party may also be held liable for knowingly aiding and abetting another to violate a
court order.”) Excluding the phrase “acting in concert” from the injunction could nullify the
decree by allowing Defendants to engage in false advertising through aiders and abettors. To
avoid that result, the Court will keep the phrase.

Defendants’ next argument is that the PPI would compel VPX’s independent retailers
and distributors to return or destroy any legacy products they purchased, creating massive losses,
waste, and business interference. (Opp’n at 25.) In support of their argument, Defendants cite
Paramount Pictures Corp. v. Carol Pub. Grp., Inc., 25 F. Supp. 2d 372, 376 (S.D.N.Y. 1998),
where the court found that the nonparty retailers and distributors were not in active concert or
participation with the defendant because they had completed their purchases of the enjoined
products prior to the injunction. But see Aevoe Corp. v. AE Tech Co., 727 F.3d 1375, 1384 (Fed.
Cir. 2013) (finding that distributors were “acting in concert” with defendant “in connection with
the resale of the enjoined products,” because distributors had notice of the injunction and they
had an exclusive distribution agreement with the defendant, making them “privies” of the
defendant).

The Ninth Circuit has not specifically addressed the question of “whether retailers [or
distributors] who sell a party’s enjoined product are in ‘active concert’ with the party.”
Homeland Housewares, LLC v. Euro-Pro Operating LLC, 2014 WL 4449922, at *3 (C.D. Cal.
Sept. 10, 2014). “The test for determining exactly who is in active concert or participation with
the enjoined party depends on the facts of each case.” Certified Nutraceuticals, Inc. v. Clorox
Co., 2022 WL 2803118, at *5 (S.D. Cal. July 18, 2022) (finding that nonparty retailers were not
“acting in concert” with defendants and thus would not be bound by an injunction because the
retailers did not have any distribution agreements with defendants (exclusive or otherwise),
defendants did not provide the nonparties with product descriptions, and defendants did not
have control over the nonparty’s listings, statements, or advertisements); see Homeland
Housewares, LLC, 2014 WL 4449922, at *3 (declining to approve defendant’s notice to retailers
that retailers were not subject to the injunction because whether or not retailers were subject to
the injunction was “fact-intensive” and would “more appropriately” be determined “in the
course of a contempt hearing”); see Wahoo Int’l, Inc. v. Phix Dr., Inc., 2014 WL 2106482, at *6
(S.D. Cal. May 20, 2014) (denying plaintiff’s ex parte application for a temporary restraining
order to enjoin defendant and its distributors and retailers in part because the balance of equities
weighed in favor of defendant where the plaintiff did not provide any evidence that defendant’s
distributors and retailers were in “active concert” with defendants).

Accordingly, because determining whether a retailer or distributor is in “active concert”
with Defendants is a fact-intensive inquiry, the Court declines to decide as to whether the phrase
“acting in concert” would compel retailers and distributors to return or destroy BANG products
and subject those retailers and distributors to being held in contempt. See Regal Knitwear Co.,
324 U.S. at 15 (the effect of an injunction on a nonparty “depends on an appraisal of his relations
and behavior and not upon mere construction of terms of the order”); see LifeScan Scotland,
Ltd. v. Shasta Techs., LLC, 2013 WL 4604746, at *5 (N.D. Cal. Aug. 28, 2013) (“an injunction
does not enjoin nonparties acting in their separate capacities; but a nonparty may be held in
contempt of an injunction after an assessment of the nonparty’s behavior and relations to the
enjoined party”). Defendants are “free to explain the lawsuit, the scope of the injunction, the
injunction’s timetable, and Defendant[s’] own theory of ‘active concert or participation’ to those
retailers [or distributors] who express concern.” Homeland Housewares, LLC v. Euro-Pro
Operating LLC, 2014 WL 4449922, at *4.

7. Compliance Certifications
The PPI requires Defendants to submit to the Court a signed, sworn declaration setting
forth a detailed summary of each step taken to comply with the injunction. (PPI ¶ 6.)
Defendants contend that there is no need to require multiple detailed certifications from both
Defendants certifying compliance because it imposes a “heavy burden” on Defendants and the
Court. (Opp’n at 26 (citing Lincoln Diagnostics, Inc. v. Panatrex, Inc., 2009 WL 3010840, *9
(C.D. Ill. 2009).) The Court agrees and removes that provision from the injunction order.

F. Defendants’ Injunction and Request for Stay

Lastly, Defendants request that if the Court determines that injunctive relief is
appropriate, the Court should enter Defendants’ proposed alternative injunction and stay its
issuance and enforcement until after the Court rules on the post-verdict motions or the
conclusion of VPX’s Chapter 11 proceedings. (Opp’n at 26.) First, Defendants’ proposed
injunction is inadequate. Defendants’ proposed injunction only requires removal of false
advertising created after March 2023, leaving prior false advertising publicly available, even if
created post-verdict. (See DPI.) And the injunction allows Defendants to produce cans with the
false “Super Creatine” label for 45 days until their respective inventories are exhausted. (Id. ¶
4.) Second, Defendants do not explain why an injunction preventing their false advertising
should be delayed. Compare WB Music Corp., 2018 WL 2121819, at *6 (denying stay because
defendants “should not be permitted to infringe” while awaiting other determinations), with
TransPerfect Glob., Inc. v. MotionPoint Corp., 2014 WL 6068384, *6 (N.D. Cal. 2014) (entering
a “generically-worded injunction” and granting stay of the enforcement of the injunction
pending resolution of the parties’ post-trial motions, which were to include briefing on the
language of any permanent injunction ). The Court finds no reason to stay the issuance or
enforcement of the injunction. While Defendants await the conclusion of VPX’s Chapter 11
proceedings and a decision by this Court to rule on their post-trial motions, they should not be
permitted to falsely advertise.

IV. CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiff’s Motion for a permanent
injunction and ENJOINS Defendants as follows:

Defendant Vital Pharmaceuticals, Inc. (“VPX”), Defendant John H. “Jack” Owoc (“Mr.
Owoc”), and all Defendants’ officers, agents, servants, employees, consultants, representatives,
parent companies, owners, subsidiaries, affiliates, and attorneys, and other persons acting in
concert with them who receive actual notice of this Permanent Injunction by personal service or
otherwise (together, the “Enjoined Persons”) are hereby enjoined as follows:

1. The Enjoined Persons are permanently enjoined from falsely or deceptively using,
expressly or impliedly, the word “creatine”—whether alone or together with other
words—in selling, offering to sell, marketing, promoting, or advertising any BANG
energy drink or any other beverage purporting to contain creatyl-L-leucine, Super
Creatine, creatine, any form or purported form of creatine, a derivative of creatine, a
precursor of creatine, or creatine bonded to L-leucine or any other amino acid or
molecule (“BANG Drinks”), including, but not limited to: (1) on any BANG Drinks
cans, labels, or packaging; (2) in any presentations, messages, or other
communications with third parties, including retailers and potential retailers,
distributors and potential distributors, and consumers and potential consumers; (3) in
physical locations, including, but not limited to, retail stores, trade shows,
expositions, experiential events, fitness clubs, and gyms; (4) in point-of-sale materials,
including, but not limited to, free standing display units, counter display units, display
stands, standees, posters, banners, mobiles, endcaps, shelf edging, dummy packs,
display packs, strut cards, stickers, statics, wobblers, suction cups, and hanging signs
(“POS Material”); and (5) in any media, including, but not limited to, print,
broadcast, the internet, websites, social media (including Instagram, TikTok,
YouTube, Facebook, and Twitter), billboards, posters, street teams, promotional
booths, wrapped vehicles, mobile applications, and product pages on which any of the
Enjoined Persons controls the displayed content (including, as applicable, The
Vitamin Shoppe, Amazon, and Walmart) (“Media”).
2. Without in any way limiting the generality of the restraint set forth in paragraph 1, the
Enjoined Persons are permanently enjoined from falsely or deceptively stating,
implying, depicting, or otherwise communicating in selling, offering to sell,
marketing, promoting, or advertising in the United States that: (1) BANG Drinks
contain “Super Creatine,” creatine, any form or purported form of creatine, a
derivative of creatine, a precursor of creatine, or creatine bonded to L-leucine or any
other amino acid or molecule; (2) BANG Drinks provide the physical, mental, health,
or any other benefits of creatine; (3) “Super Creatine” is creatine, any form or
purported form of creatine, a derivative of creatine, a precursor of creatine, or
creatine bonded to L-leucine or any other amino acid or molecule; (4) “Super
Creatine” provides the physical, mental, health, or any other benefits of creatine; (5)
creatyl-L-leucine is “Super Creatine,” creatine, any form or purported form of
creatine, a derivative of creatine, a precursor of creatine, or creatine bonded to L-
leucine or any other amino acid or molecule; and (6) creatyl-L-leucine provides the
physical, mental, health, or any other benefits of creatine (together, the “Enjoined
Claims”).
3. Within seven (7) business days of the issuance of this Permanent Injunction,
Defendants must deliver a copy of this Permanent Injunction to all Enjoined Persons.
Defendants must deliver a copy of this Permanent Injunction to all new Enjoined
Persons within seven (7) business days of the date on which such persons become
Enjoined Persons (e.g., hiring).
4. Within sixty (60) days of the issuance of this Permanent Injunction:
a. The Enjoined Persons must remove the term “creatine,” whether alone or
together with other words that state, imply, depict, or otherwise communicate
the Enjoined Claims, from all BANG Drinks cans, labels, and packaging;
b. The Enjoined Persons must remove and/or cause to be removed from all
physical locations and web-based points of sale, including, but limited to,
websites, retail stores, trade shows, expositions, experiential events, fitness
clubs, and gyms, all cans, labels, packaging, and POS Material for BANG
Drinks that use or contain the term “creatine,” whether alone or together
with other words that state, imply, depict, or otherwise communicate the
Enjoined Claims and that were placed by the Enjoined Persons or at the
direction of the Enjoined Persons; and
c. The Enjoined Persons must remove from all Media all materials selling,
offering to sell, marketing, promoting, or advertising any BANG Drinks—
including all videos and pictures showing the BANG Drinks can, label, or
packaging—that use or contain the term “creatine,” whether alone or
together with other words that state, imply, depict, or otherwise communicate
the Enjoined Claims that were posted by the Enjoined Persons or at the
direction of the Enjoined Persons.
5. Within sixty (60) days of the issuance of this Permanent Injunction:
a. For a period of one (1) month, Defendants must post on all webpages they use
to sell, offer to sell, market, promote, or advertise any BANG Drinks
(including bangenergy.com and vpxsports.com) and on all their social media
accounts (including Instagram, TikTok, YouTube, Facebook, and Twitter)
the language in paragraph 5(i) below (the “Corrective Statement”). The
Corrective Statement shall be: in a font size at least as large as the most
prominent language on the page; and immediately adjacent to the most
prominent language on the landing page of each website or pinned or
otherwise saved as the first post on each social media account. For avoidance
of doubt, if multiple webpages on a website sell, offer to sell, market, promote,
or advertise BANG Drinks, Defendants must include the Corrective
Statement on each such webpage.
i. “In September 2022, a jury issued a unanimous verdict finding that Vital
Pharmaceuticals, Inc. (d/b/a Bang Energy) (“VPX”) and former Chief
Executive Officer John H. “Jack” Owoc willfully and deliberately engaged
in false advertising by claiming that the BANG energy drink contains
creatine, contains “Super Creatine,” and provides the benefits of creatine.
The United States District Court for the Central District of California has
permanently enjoined VPX and Mr. Owoc from falsely or deceptively
selling, offering to sell, marketing, promoting, or advertising BANG as
containing creatine, as containing “Super Creatine,” or as providing the
benefits of creatine.”
b. Defendants must deliver to all retailers, e-commerce websites, brokers,
distributors, dealers, wholesalers, importers, influencers, and other non-
consumers who they have worked with to sell, offer to sell, market, promote,
or advertise BANG Drinks a written, signed notice, in the form attached as
Exhibit A, that includes a copy of this Permanent Injunction. For a period of
one (1) month, Defendants have an ongoing obligation to deliver a written,
signed notice, in the form attached as Exhibit A, that includes a copy of this
Permanent Injunction to all retailers, e-commerce websites, brokers,
distributors, dealers, wholesalers, importers, influencers, and other non-
consumers who Defendants work with to sell, offer to sell, market, promote,
or advertise BANG Drinks.

IT IS SO ORDERED.
Case No. 5:18-cv-1882-JGB-SHK
Exhibit A
To: Our Valued Customers and Partners
Subject: Corrective Statement Relating to VPX’s Advertising and Promotion of “Super
Creatine”

In September 2018, Monster Energy Company filed a civil suit against Vital
Pharmaceuticals, Inc. d/b/a Bang Energy (“VPX”) and its former Chief Executive Officer John
H. “Jack” Owoc, alleging false and misleading advertising. In September 2022, a jury issued a
unanimous verdict finding that VPX and Mr. Owoc willfully and deliberately engaged in false
advertising by claiming that the BANG energy drink contains creatine, contains “Super Creatine,”
and provides the benefits of creatine.
On [Insert Date Permanent Injunction Issued], the United States District Court for the
Central District of California issued a permanent injunction enjoining VPX and Mr. Owoc from
falsely or deceptively selling, offering to sell, marketing, promoting, or advertising BANG as
containing creatine, as containing “Super Creatine,” or as providing the benefits of creatine
(“Permanent Injunction”). Attached as Exhibit 1 to this letter is a copy of the Permanent
Injunction.
As part of the Permanent Injunction, the Court ordered removal of the term “creatine,”
whether alone or together with other words, from the BANG can, label, and packaging. The Court
also ordered removal of all cans, labels, packaging, and point-of-sale materials for BANG that use
the term “creatine,” whether alone or together with other words that state, imply, depict, or
otherwise communicate the Enjoined Claims (as defined in the Permanent Injunction), from all
physical and web-based points of sale, including, but limited to, retail stores, websites, trade shows,
fitness clubs, and gyms. The Court also ordered removal from public availability all materials
selling, offering to sell, marketing, promoting, or advertising BANG—including videos and
pictures showing the BANG can, label, or packaging—that use the terms “creatine” whether alone
Case No. 5:18-cv-1882-JGB-SHK
or together with other words that state, imply, depict, or otherwise communicate the Enjoined
Claims.
If you have any questions, please do not hesitate to contact us directly at: [Insert email] and
the following telephone number: [Insert telephone number].

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9982962. Public record. Not legal advice.