MONSTER Mash: Analyzing MONSTER ENERGY v. THE VERMONSTER

No, this isn't Saturday afternoon at the monster matinee.

A look behind the headlines for today’s topic.  Some trademark-sensitive readers may have seen in the headlines a report that large-scale energy drink marketer Hansen Beverage Co. has sent a cease and desist letter alleging trademark infringement to a small craft brewer named Rock Art Brewery.  

Rock Art, which is located in Vermont, markets its beer under the name THE VERMONSTER. Hansen Beverage, it has been reported, markets energy drinks under the trademark MONSTER. Or does it?  In fact, the mark Hansen uses and has registered (U.S. Reg. No. 3,134,841, among others) is M MONSTER ENERGY, featuring a rather distinctive stylized “M” that resembles three claw marks, as shown above.  Rock Art’s use looks like this:

THE VERMONSTER Beer, marketed by Rock Art Brewery

Rock Art’s owner Matt Nadeau reportedly has lamented that five trademark attorneys have told him that “the law is probably on his side, but that proving it through lengthy litigation could bankrupt him.”  Nadeau’s response is that “Corporate America can’t be allowed to do this, in this day and age. It’s just not right.”  Nadeau also reports that Hansen’s attorneys rebuffed his offer to surrender any rights to THE VERMONSTER in the energy drink category, because Hansen wants to enter the alcoholic beverage market.

So, is Rock Art’s use of THE VERMONSTER for craft beers confusingly similar to Hansen’s use of MONSTER ENERGY for energy drinks? 

Considered in a vacuum with only that information, my own assessment would be that a reasonable court or jury could find either way.  On the one hand, the respective marks and goods are different enough that I believe consumers would not mistake one for the other.  On the other hand, infringement does not require that consumers be likely to actually confuse the marks – it is enough if consumers believe there is some connection between or approval of the two uses, where none exists.

Looking behind those bare facts, however, I would predict an outcome in favor of Rock Art.  The fact is, Hansen is far from the first to use or register a MONSTER-formative mark for beverages. 

There are prior registrations of B MONSTER and C MONSTER for nonalcoholic fruit juice based beverages, owned by national marketer Odwalla, Inc.  BIG HOPPY MONSTER also registered for beer, ales and lagers, prior to Hansen’s mark.  Finally, FLATHEAD LAKE MONSTER registered after Hansen’s M MONSTER ENERGY mark for soft drinks and beer, but based on use that long predated Hansen’s use.

Taking into account these prior uses and registrations, it appears that Hansen’s rights in “MONSTER” actually are rather limited, despite the company’s energetic attempts to appropriate the term.  In the face of so many MONSTER-formative beverage marks, the law tends to assume consumers will distinguish them based on other components of the marks.  In my opinion, the “other components” of THE VERMONTER are at least as distinctive as those in B MONSTER and C MONSTER, when compared to M MONSTER ENERGY.  Hansen’s ability to enter the alcoholic beverage market also is highly questionable, in light of the prior beer registrations.

Setting aside the merits of the case, there remains the chance that Hansen may be able to “bully” its way to victory by using its greater resources to litigate Rock Art to death.  Obviously that possibility lurks between the lines here.

In that regard, however, Hansen may not be the biggest bully on the block.  The Coca-Cola Company has filed an application for MONSTER REFRESHMENT for “non-alcoholic beverages, namely soft drinks and sports drinks,” which is currently pending.  Hansen has opposed, but the opposition has stretched on for more than three years.  Proceedings currently are suspended to allow for settlement discussions.