Abbott Laboratories v. Revitalyte LLC, 2026 WL 2374024, No.
23-1449 (DWF/DTS) (D. Minn. Apr. 30, 2026)

The court here allows part of Abbott’s infringement claim to
proceed, including against “compare to Pedialyte,” which I think is wrong,
though Revitalyte did other sketchy stuff that is less clearly comparative. It
rejects Abbott’s trade dress claim, in part because so many house brands have
the same or similar trade dress.

The parties compete in the market for oral electrolyte
solution (OES), drinks intended to relieve symptoms of dehydration. Pedialyte
now expands beyond the pediatric market and is now also sold to adults for
illness-and exercise-related dehydration; Abbott briefly advertised it as a
remedy for alcohol-related dehydration/hangover. Abbott dominates the OES
market with over half of the total sales in the category.

Three kinds of Pedialyte: regular, advanced and sport

It defined its claimed unregistered trade dress as:

the clear rectangular plastic
bottle; the bottle’s rounded corners; the placement and appearance of the two
ridges or “ribs” around the bottle’s circumference; the placement and
appearance of the bottle’s gently sloping shoulders; the bottle volume of roughly
one liter; the wrap-around label encircling the middle 50-60 percent of the
bottle with the name of the product prominently displayed horizontally; the
bright colors of the various Pedialyte flavors as visible above and below the
label; the color palette, size, and alignment of the wrap-around label; and the
size, color palette, and appearance of the shrink-wrapped screw-on.

Abbott claimed use since 1986, despite slight change in the
bottle specifications.

“[C]onsumer research showed that parents and doctors wanted
something non-breakable with the ability to see the fluid level. Abbott chose a
square bottle shape for the plastic container to mimic packaging from sterile
irrigation bottles; the medicinal feel communicated to parents that the product
was safe and trusted for medical purposes. Abbott also added the shrink-wrap
cap to show the consumer if the product had been tampered with.” [There’s more functionality evidence but it is irrelevant.]

Revitalyte targets young adults seeking relief from
alcohol-related dehydration. “The link with alcohol abuse and other off-color
themes is explicit in the company’s marketing. Its social media pages are rife
with references to excessive drinking, hangovers, and partying.”

In the original Revitalyte bottle, the shrink-wrapped cap
included the text “Compare to Pedialyte.” The back of the wrap-around label
included a disclaimer that Revitalyte was not associated with Pedialyte. Revitalyte
also partnered with Barstool Sports on Revitalyte Black Label. Revitalyte
initially used PBM Nutritionals as its manufacturer; PBM designed and supplied
the bottle itself (it didn’t offer different shapes), the placement of the
label, the shrink-wrapped cap, and the “Compare to Pedialyte” language. PBM had
a trademark registration for its “block shaped bottle.” “Revitalyte could have
further customized by removing the ‘Compare to Pedialyte’ on the shrink-wrapped
cap, but chose not to because it would have been more expensive.”

private label with “compare to Pedialyte” on cap

Since 2024,
Revitalyte has sold only 20-ounce products and no longer uses PBM as a manufacturer.

current bottle

Revitalyte’s admitted goal was to be an adult version of
Pedialyte— “the same product but purchased in the liquor store instead of
having to go to the baby aisle.” It used a square bottle to communicate that
the product was part of the OES category by matching the category leader. 

also three kinds of Revitalyte

Also:

Revitalyte’s marketing strategy has
leaned into the similarity with Pedialyte®. Revitalyte’s website said it was
the “same electrolyte formula found in the baby aisle.” Revitalyte’s website
also included screenshots of social media posts discussing Pedialyte® by name.
(Further, Revitalyte advertised its products using a comparison to Pedialyte®.)

This resulted in consumer confusion, e.g., a social media
post calling Revitalyte “Revitalyte by Pediatlyte.” Other posts called Revitalyte
Black Label Barstool’s version of Pedialyte (it’s not obvious to me that
reflects confusion, but the court thought so). Revitalyte didn’t shut down this
confusion. Instead, it shared those posts on its social media pages. This
proved to be a bad plan.

retweet of “Revitalyte is the adult version of Pedialyte”

Retweet of “barstool sports brand pedialyte”

similar

quote post of “like Pedialyte” (which should be fine)

Pedialyte tagged as producer of Revitalyte

Revitalyte used social media posts mentioning Pedialyte

Trade dress infringement: Abbott failed to show that its
trade dress was protectable. It had no direct evidence of secondary meaning. “Given
that Abbott did commission an expert on a related issue, that omission is
telling.” Instead, it relied on its advertising and sales; proof of Revitalyte’s
intent to copy; and instances of actual confusion by consumers.

If “advertising promote[s] the product’s functions and
appearance, not its source,” then advertising expenditures are not probative. The
ads in the record focused on function, e.g., the resealable cap, ability to
pour and measure, and visibility of the liquid touted as “conveniences” to
parents.

Similarly, sales are probative of secondary meaning only if
they can be traced to the use of the claimed trade dress. Abbott’s “sales are
impressive, but there is no indication that the trade dress specifically was
responsible.”

Intentional copying can indicate secondary meaning, but “when
a defendant clearly labels its products with its own trademark, the inference
of secondary meaning is rebutted.” The Revitalyte trademark was used
conspicuously on the bottle and Revitalyte used an express disclaimer. The
evidence suggested an intent to compete, which wasn’t sufficient to establish
secondary meaning.

Consumer confusion can also be evidence of secondary meaning.
But here, its significance was  “refuted
by the ample evidence of third-party products with similar packaging because it
shows a lack of exclusive use. When there are similar components used among
various products, it is more difficult for a consumer to attribute that feature
to any one source.” The PTO told PBM , that the applied-for mark was not
inherently distinctive because “it is a common practice in the industry to
market electrolyte replacement solutions … [in] bottles with narrow necks
that slope down to straight sides.”

Even more telling, the Pedialyte®
bottle design was based off medical irrigation bottles. Any claim that the
bottle’s features are indicative of only one source is belied by the fact that
the bottle design was initially copied from a different type of product. The
ubiquity of the square bottle shape in the OES market and in medical packaging
suggests that it cannot be attributed to a single source in the minds of
consumers.

Abbott argued that the third-party products were “private
label brands,” less likely to confuse consumers. Its evidence here is sealed
(grrr) but its consumer expert opined that, because Revitalyte is “branded,”
that’s more likely to be confusing. “But regardless of whether consumers think
Revitalyte® is a private label or national brand, the market is still saturated”
(citing Versa Prods. Co. v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 216 (3d Cir.
1995) (“The use of private labelling undermines a claim that a product’s
appearance denotes its source, because consumers will be less likely to
associate the multifariously labeled product with a single source.”)). Thus, Abbott
couldn’t show the exclusive use of the trade dress required to establish
secondary meaning.

After all that, “Compare to Pedialyte”—the most standard
comparative message there is—kept Revitalyte in trouble, along with its hinky
social media. The court noted that defendant didn’t provide much in the way of
argument on trademark infringement, making it hesitant to grant summary
judgment.

The various factors could support a finding either way: The
products are similar (thus, “compare”). The different target audiences and
different retail locations cut against likelihood of confusion. There was “ample
evidence of Revitalyte’s intent to align with the Pedialyte® name, even
purposely rhyming with Pedialyte®, which indicates an intent to ‘pass off’
Revitalyte® as part of Abbott.” But Revitalyte’s use of “compare to” and its
own branding indicated an intent to differentiate (ciating Conopco, Inc. v. May
Dep’t Stores Co., 46 F.3d 1556, 1571 (Fed. Cir. 1994) (finding that a “compare”
statement “draws a clear distinction” between products)). Thus, there was a
material question of fact on likely confusion.

[Now, how do we segregate the confusion evidence based on
name from that supposedly based on shape/trade dress? There’s going to be a
causation problem. “Compare to” isn’t likely to cause confusion, but the online
behavior much more plausibly is. But that wasn’t clearly based on the name
itself, where the overlap in suffix “lyte” has a pretty descriptive meaning. If
anything, the strongest claim is false association under 43(a) based on the online
conduct, not even really trademark infringement as such.]

Trademark dilution: Revitalyte conceded the fame of
Pedialyte. “The textbook example of trademark dilution by tarnishment is the
association of a mark with an unsavory context. Revitalyte readily associates
its brand with alcohol abuse and uses a crude advertising approach.” Thus, a
fact finder could find tarnishment of Pedialyte, “a product centered on health
and, often, children’s health specifically.” But Abbott did, at one point,
advertise it as a cure for hangovers, so Abbott’s own attempts to identify with
that market would justify a finding that associations with alcohol are not a
tarnishment to the brand.  

Revitalyte briefly argued that the use of the “compare to”
statement mitigates any risk of reputational harm because consumers know they
are separate products. True, comparative advertising is exempted from dilution
claims.

But, making up something that isn’t in the dilution provision,
“the comparative advertisement exception only applies if the user does not do
anything to suggest sponsorship or endorsement.” [So apparently the jury can
only find dilution by tarnishment if it also finds confusion? Cool with me, I
suppose.] And here,

Revitalyte’s attempts to align with
Pedialyte® go far beyond a mere “Compare to Pedialyte” statement on the bottle.
There are multiple documented examples of Revitalyte reposting social media
posts that describe Revitalyte® as owned by Pedialyte® and Revitalyte did not
correct that factual error. In some of those posts, there is either no Revitalyte®
bottle or no shrink-wrapped seal, so the comparative language is not present to
clarify the lack of a relationship. Those advertisements suggest sponsorship by
Pedialyte®, which distinguishes this case from those which allow comparative
use.

I hate to borrow a bit from copyright law, but this might be
better addressed by a use by use analysis. Under no circumstances should the (not
misleading) statement “compare to Pedialyte” ever constitute dilution or be
enjoined. But the other uses weren’t comparative advertising and weren’t
eligible for that exception.

Abbott also moved to preclude Revitalyte’s rebuttal expert
on the “private label” point above. “[R]ebuttal evidence may be used to
challenge the evidence or theory of an opponent—and not to establish a
case-in-chief.” Id. A rebuttal expert “may only respond to evidence offered by
the defendant.”

Though we can’t see it, Abbott’s expert report analyzed
whether Revitalyte is better described as a private label brand or a national
brand by applying the “4Ps” framework: place, product, price, and promotion and
concluded that Revitalyte “exhibits the hallmarks of a national brand.” The
report further opined that, as a result of the positioning as a national brand,
a meaningful segment of consumers is likely to perceive that Revitalyte is
associated with Pedialyte. He didn’t conduct a survey.

The rebuttal report was about a confusion survey that
purportedly showed de minimis confusion between Pedialyte and Revitalyte
bottles. It didn’t address the issue of national brands versus private labels,
nor the 4Ps framework. “Even if using a different approach, [the] rebuttal
testimony must have engaged with the 4Ps framework or addressed the central
question of national brand versus private label.” Thus this report was
excluded.

Given that Abbott was seeking only disgorgement, Revitalyte
wasn’t entitled to a jury. [Disgorgement would nicely solve the obvious
causation problems, too.]

from Blogger https://tushnet.blogspot.com/2026/08/private-label-brands-show-lack-of.html