Three months ago we discussed a “trademark bullying” allegation against Monster Energy, detailed in a declaratory judgment complaint filed in Montana federal district court by energy-drink competitor Victory Energize.
Last week, Law360 reported the case settled on confidential terms, and the claims were dismissed with prejudice, at Victory Energize’s request, so the “trademark bullying” charge against Monster Energy won’t be pursued further by Victory Energize.
As a result, we’re left to speculate what the key settlement terms might have been. Did money change hands? Did both simply call a truce and walk away? Did Victory Energize agree to modify any trade dress? If not, why not?
There are a few things we know for certain:
- No new federal trademark applications have been filed by Victory Energize to assist our speculation of possible terms.
- Monster Energy appears unmoved by our criticism of failing to seek federal registration of the iconic green/black/white trade dress — no new filings.
- The colorless and unchallenged Victory Energize mark remains registered, and surprisingly, the green/black/white Victory Energize can (to the right) remains on its website (at least, for now):
- Surprisingly too, the Victory Energize drink in the green/black/white can can still be purchased on Amazon.com.
Lest you believe from these certainties that Monster Energy has lost the drive for vigorous trademark enforcement activities, think again, it might be time for a shot of taurine to sharpen your focus.
By my count, Monster Energy has filed no less than fifty-six (56) Notices of Opposition with the TTAB of the USPTO in 2014, three (3) so far this month, and eight (8) extensions of time to oppose have been filed in December so far too.
Indeed, Monster Energy appears to be on a rampage against marks containing MONSTER in Int’l Class 25 for any clothing items: RIDGE MONSTER, CHOREMONSTER, MONSTER CLOTHING CO., MONSTER BUCK, MONSTER RACKS, and CAMP MONSTER, among others.
While I can see the Camp Monster has a green eye, I’m still asking: Monster Energy’s rights can really reach the blue Camp Monster logo to the left for clothing?
Monster Energy filed a motion for summary judgment at the TTAB last month, based on the admissions resulting from Camp Monster’s failure to answer Monster Energy’s requests for admission.
If Monster Energy prevails at the TTAB on the issue of likelihood of confusion, won’t this be yet one more example of why our federal district courts should not be bound by the decisions of the TTAB?
Monster Energy has even pounced on another Monster (also labeled a trademark bully) — Monster Cable’s attempts to register the marks MONSTER GEAR and POWERED BY MONSTER, have been opposed by none other than, Monster Energy.
Each Monster has taken the position that its MONSTER word mark is famous. Although I suspect the visual identity of the MONSTER ENERGY brand (top left above) might qualify for a showing of fame, I’m thinking that neither Monster Energy nor Monster Cable can make the claim of fame stick in the context of federal dilution, as to the word MONSTER standing alone, given the existence of the other, and given how niche fame has been ruled out under federal dilution law.
Nevertheless, Monster Energy appears to have no shortage of stamina in pursuing Monster-based trademark enforcement targets, so with Victory Energize sitting out, who will stand in the way?