Private label brands show lack of exclusive use for Pedialyte's trade dress claim, but bad social media use saves TM claim

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 toproceed, including against “compare to Pedialyte,” which I think is wrong,though Revitalyte did other sketchy stuff that is less clearly comparative. Itrejects Abbott’s trade dress claim, in part because so many house brands havethe same or similar trade dress.

The parties compete in the market for oral electrolytesolution (OES), drinks intended to relieve symptoms of dehydration. Pedialytenow expands beyond the pediatric market and is now also sold to adults forillness-and exercise-related dehydration; Abbott briefly advertised it as aremedy for alcohol-related dehydration/hangover. Abbott dominates the OESmarket 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 plasticbottle; the bottle’s rounded corners; the placement and appearance of the tworidges or “ribs” around the bottle’s circumference; the placement andappearance of the bottle’s gently sloping shoulders; the bottle volume of roughlyone liter; the wrap-around label encircling the middle 50-60 percent of thebottle with the name of the product prominently displayed horizontally; thebright colors of the various Pedialyte flavors as visible above and below thelabel; the color palette, size, and alignment of the wrap-around label; and thesize, color palette, and appearance of the shrink-wrapped screw-on.

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

“[C]onsumer research showed that parents and doctors wantedsomething non-breakable with the ability to see the fluid level. Abbott chose asquare bottle shape for the plastic container to mimic packaging from sterileirrigation bottles; the medicinal feel communicated to parents that the productwas safe and trusted for medical purposes. Abbott also added the shrink-wrapcap 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 fromalcohol-related dehydration. “The link with alcohol abuse and other off-colorthemes is explicit in the company’s marketing. Its social media pages are rifewith references to excessive drinking, hangovers, and partying.”

In the original Revitalyte bottle, the shrink-wrapped capincluded the text “Compare to Pedialyte.” The back of the wrap-around labelincluded a disclaimer that Revitalyte was not associated with Pedialyte. Revitalytealso partnered with Barstool Sports on Revitalyte Black Label. Revitalyteinitially used PBM Nutritionals as its manufacturer; PBM designed and suppliedthe bottle itself (it didn’t offer different shapes), the placement of thelabel, the shrink-wrapped cap, and the “Compare to Pedialyte” language. PBM hada trademark registration for its “block shaped bottle.” “Revitalyte could havefurther customized by removing the ‘Compare to Pedialyte’ on the shrink-wrappedcap, 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 ofPedialyte— “the same product but purchased in the liquor store instead ofhaving to go to the baby aisle.” It used a square bottle to communicate thatthe product was part of the OES category by matching the category leader. 

also three kinds of Revitalyte

Also:

Revitalyte’s marketing strategy hasleaned into the similarity with Pedialyte®. Revitalyte’s website said it wasthe “same electrolyte formula found in the baby aisle.” Revitalyte’s websitealso 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 mediapost calling Revitalyte “Revitalyte by Pediatlyte.” Other posts called RevitalyteBlack Label Barstool’s version of Pedialyte (it’s not obvious to me thatreflects confusion, but the court thought so). Revitalyte didn’t shut down thisconfusion. Instead, it shared those posts on its social media pages. Thisproved 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 itstrade dress was protectable. It had no direct evidence of secondary meaning. “Giventhat Abbott did commission an expert on a related issue, that omission istelling.” Instead, it relied on its advertising and sales; proof of Revitalyte’sintent to copy; and instances of actual confusion by consumers.

If “advertising promote[s] the product’s functions andappearance, not its source,” then advertising expenditures are not probative. Theads in the record focused on function, e.g., the resealable cap, ability topour and measure, and visibility of the liquid touted as “conveniences” toparents.

Similarly, sales are probative of secondary meaning only ifthey can be traced to the use of the claimed trade dress. Abbott’s “sales areimpressive, but there is no indication that the trade dress specifically wasresponsible.”

Intentional copying can indicate secondary meaning, but “whena defendant clearly labels its products with its own trademark, the inferenceof secondary meaning is rebutted.” The Revitalyte trademark was usedconspicuously on the bottle and Revitalyte used an express disclaimer. Theevidence suggested an intent to compete, which wasn’t sufficient to establishsecondary meaning.

Consumer confusion can also be evidence of secondary meaning.But here, its significance was  “refutedby the ample evidence of third-party products with similar packaging because itshows a lack of exclusive use. When there are similar components used amongvarious products, it is more difficult for a consumer to attribute that featureto any one source.” The PTO told PBM , that the applied-for mark was notinherently distinctive because “it is a common practice in the industry tomarket electrolyte replacement solutions ... [in] bottles with narrow necksthat slope down to straight sides.”

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

Abbott argued that the third-party products were “privatelabel 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 thinkRevitalyte® 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’sappearance denotes its source, because consumers will be less likely toassociate the multifariously labeled product with a single source.”)). Thus, Abbottcouldn’t show the exclusive use of the trade dress required to establishsecondary meaning.

After all that, “Compare to Pedialyte”—the most standardcomparative message there is—kept Revitalyte in trouble, along with its hinkysocial media. The court noted that defendant didn’t provide much in the way ofargument on trademark infringement, making it hesitant to grant summaryjudgment.

The various factors could support a finding either way: Theproducts are similar (thus, “compare”). The different target audiences anddifferent retail locations cut against likelihood of confusion. There was “ampleevidence of Revitalyte’s intent to align with the Pedialyte® name, evenpurposely rhyming with Pedialyte®, which indicates an intent to ‘pass off’Revitalyte® as part of Abbott.” But Revitalyte’s use of “compare to” and itsown branding indicated an intent to differentiate (ciating Conopco, Inc. v. MayDep’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 amaterial question of fact on likely confusion.

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

Trademark dilution: Revitalyte conceded the fame ofPedialyte. “The textbook example of trademark dilution by tarnishment is theassociation of a mark with an unsavory context. Revitalyte readily associatesits brand with alcohol abuse and uses a crude advertising approach.” Thus, afact finder could find tarnishment of Pedialyte, “a product centered on healthand, 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 withthat market would justify a finding that associations with alcohol are not atarnishment to the brand.  

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

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

Revitalyte’s attempts to align withPedialyte® go far beyond a mere “Compare to Pedialyte” statement on the bottle.There are multiple documented examples of Revitalyte reposting social mediaposts that describe Revitalyte® as owned by Pedialyte® and Revitalyte did notcorrect 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 toclarify the lack of a relationship. Those advertisements suggest sponsorship byPedialyte®, which distinguishes this case from those which allow comparativeuse.

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

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

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

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

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