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 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.]