On Tuesday, a U.S. District Court denied Pepsi’s Motion for Preliminary Injunction after determining that Pepsi had not shown either a likelihood of irreparable injury or a likelihood of success on the merits. See Stokely-Van Camp, Inc. v. The Coca-Cola Company et al., Case No. 09-03741 (S.D.N.Y. August 4, 2009). A copy of the 54 page decision can be downloaded here. Reuters and Courthousenews both ran news coverage of the decision.
Pepsi came up with the idea for Gatorade ION+, its planned calcium-enriched sports drink formula with its “sweat-emulating reformulation,” when it learned of Coke’s Powerade's ION4 product that was coming to market. Unfortunately, Pepsi’s supply of calcium dried up and so Pepsi had to change its advertising to eliminate references to calcium and magnesium – something that Coke took advantage of in some comparative ads as part of its Powerade marketing campaign that sparked the lawsuit by Pepsi in the first place. The court noted that while Pepsi complains about Coke’s claims regarding the presence of calcium and magnesium in Powerade ION4, Pepsi had made virtually the same claims about its own Gatorade formula (before being forced by circumstances to eliminate such references). The court stated that Pepsi “cannot, having jumped on the bandwagon of calcium and magnesium first, now jump off and claim that Coca-cola must get off too.”