Innovation Ventures, L.L.C., d/b/a Living Essentials (“Living Essentials”) filed a complaint in the United States District Court for the Eastern District of Michigan, Southern Division on August 12, 2011 asserting that Aspen Fitness Products, Inc. (“Aspen”), along with Derrick George (“George”) and his family of companies (“On Go”) misappropriated its trade secrets related to its popular “5 Hour Energy” beverage. The drink comes in a small bottle and is taken as a “shot” containing caffeine and B vitamins. George and On Go directly compete with Living Essentials with their own drink, On Go Energy Shot.
Kevin Zwierzchowski (a non-defendant), who worked at Living Essentials as controller and operations manager from March 2006 until September 2007, allegedly was in possession of the trade secrets in question. Living Essentials discovered that Mr. Zwierzchowski had retained information such as product formulae, pricing information, and supplier and vendor contact lists and shared that information with third parties including George and On Go.
Living Essentials maintains that Mr. Zwierzchowski had no authorization to possess or reveal these trade secrets, particularly as he was in a position “charged with the highest level of responsibility” and “having a duty of loyalty to Living Essentials.” Thus, Living Essentials asserts that the only way Living Essentials’ competitors could have gained this information is by wrongfully obtaining it from Zwierzchowski.
These allegations about Zwierzchowski, George, and On Go additionally are the subject of a current criminal investigation by the FBI.
Additional claims include both direct and contributory copyright infringement (of its caution label), trademark infringement (of its allegedly well-known “Running Man” logo), unfair competition and dilution under the Lanham Act, common law unfair competition, and common law unjust enrichment.
Living Essentials seeks injunctive relief as well as the greater of actual damages or statutory damages caused by the improper use of its proprietary information, copyrighted material and trademark, including attorneys’ fees.