Glaceau , the company that markets vitaminwater, filed a complaint in the US District Court for the Southern District of New York on Monday, September 15, and was granted the TRO on Tuesday.

Glaceau's complaint accused Vogue of trade dress infringement, false designation of origin, trade dress dilution, deceptive acts and practices and unfair competition for planning to launch a line of products that Glaceau said was confusingly similar to the vitaminwater drinks.

Although vitaminshampoo's trade dress is undeniably similar to vitaminwater's, Vogue said that there can be no likelihood of confusion, since shampoo and energy drinks are different classes of goods.

"My client sells shampoo, not a soft drink," said Vogue's counsel, Anthony Handal of Thompson Hine during the TRO hearing last Monday. "It's a fundamental tenet of the trade mark law that the product in which the mark of the dress is used is critical. I mean, that's why we have a registration system in which there are I guess about 35, 40 classes."

Handal also pointed to the disparities between the shapes of the bottles and textures of the two labels, which he argued were enough to discourage confusion: "It's going to be very difficult to prove likelihood of confusion in this case because the bottles are really quite different," said Handal.

But both Glaceau's counsel and the judge disagreed. In his decision from the bench, Judge Lewis Kaplan said: "There are earmarks of bad faith all over the place. It is inconceivable to me that the defendant could possibly have developed this trade dress that the defendant is using without an attempt to go at least as close to the line as it thought it could get and, in all likelihood, well over the line of imitating the plaintiff's."

Kaplan said, despite the few differences between the labels: "The typography of the names is to the unschooled naked eye, identical."

He continued: "Looking at the array of the defendant's bottles next to the array of the plaintiff's bottles with the colored liquid in them, it seems reasonably clear that any normal consumer would be confused, the impression would be that the products are from the same source."

David Bernstein of Debevoise & Plimpton, who acted for Glaceau, said that Glaceau received two separate emails from consumers inquiring about the company's new hair care products, which already have been advertised in magazines such as Cosmopolitan and Teen Vogue .

Because the authors of the emails assumed the product was made by Glaceau, Bernstein said they demonstrated so-called actual confusion, which is often difficult to prove in trade mark cases.

Judge Kaplan agreed, and ordered the TRO barring Vogue and its downstream distributors from "manufacturing, distributing, shipping, advertising, marketing, promoting, selling or otherwise offering for sale" its vitaminshampoo and vitaminconditioner products.

Vogue had already shipped about 90,000 products to retailers.

"In today's economy, it's common for the same company to offer products in different classes, so what's the likelihood that consumers will think of the shampoo as an extension of vitaminwater?" asked Bernstein.

Bernstein said that the parties have agreed to extend the TRO through the end of the year, at which point a preliminary injunction hearing will be held.

In the meantime, negotiations are underway, "but so far, we're nowhere close", said Bernstein.