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Monster Energy Loses Trademark Opposition Against UK Drink Company, But May Have Bullied It To Death Anyway

from the winning-by-losing dept

A review of our stories about Monster Energy's trademark bullying ways might leave some scratching their heads as to why the company continues along these lines at all. After all, any review of those stories will leave one with the impression that Monster Energy seems to lose these trademark oppositions at nearly every turn. So, if that's the case, why continue with this losing streak?

Well, as we've explained previously, winning an opposition or lawsuit is only one of the real goals in trademark bullying. Other goals include making the opposition so painful and expensive so as to either push the victim into unreasonable changes or to simply drain the victim of cash and assets as they attempt to defend themselves. Likewise, such bullying serves as public notice to anyone else that might consider similar actions that would draw the bully's ire, chilling their willingness to do so. In this, Monster Energy's trademark bullying is often quite successful.

An example of this can be found in UK beverage company Thirsty Beasts, which recently won its case against Monster Energy's opposition to its trademark for the second time on appeal.

Dan Smith, from Newbury, created healthy drinks company Thirsty Beasts in 2018, and the US firm filed a legal challenge against him.

It claimed customers would confuse both Mr Smith's slogan - "Rehab the beast" - with its "Unleash the beast" line. The case, which was dismissed, cost Mr Smith more than £30,000 in legal fees. He said he and his wife had ploughed every penny they had into launching the business. After registering his first trademark in the UK in 2016, Mr Smith then filed the Thirsty Beasts logo. Billion-dollar company Monster Energy objected to his application, claiming Mr Smith's slogan was too similar to its own.

The UK Trademark Office ruled in favour of Thirsty Beasts, but Monster Energy appealed the decision.

And Thirsty Beasts won that appeal. The Trademark Office once again reviewed the material provided by the two companies, including the branding, company names, and logos, and rightly decided that there was no customer confusion to be had here. You can read the entire timeline of events for yourself on the company's website, but ultimately this story has a happy ending, right?

Well, again, winning the opposition isn't the only, or perhaps even primary goal, of the trademark bully.

"Financially it has crippled the company," Mr Smith said. He added: "We had savings set aside to boost the product, to do the marketing, to get that one drink out. Now we've burnt all of that, that and more trying to win this. We are two years behind where we want to be."

The entrepreneur now needs to raise £28,000 for a limited launch of the product in spring 2019.

Maybe the Smith family will be able to do that, maybe they won't. And that's the real harm of large corporate trademark bullies like Monster Energy. Even in losing, it might still ultimately win if its victim can't survive in business because of its bullying. And, again, Monster Energy can point to such an outcome should anybody else out there want to take similar innocuous actions.

Trademark bullying works. And on more than one front.


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  1. icon
    Gary (profile), 4 Dec 2018 @ 6:56pm

    Bullies suck

    Lacking enough cash to sway the court decisions - the best thing we can do is boost the signal and ensure that Monster faces bad publicity for it's shitty behavior.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 4 Dec 2018 @ 8:12pm

    Reminds me of that cop saying...

    "You might beat the rap, but you wont beat the ride." Sounds like Monster Energy took Thirsty Beasts for a ride.

    reply to this | link to this | view in thread ]

  3. This comment has been flagged by the community. Click here to show it
    identicon
    John Smith, 4 Dec 2018 @ 11:45pm

    You were wrong, Mikey. What's the matter, pirates couldn't f7nd your trademark infringers? Your ass is next.

    reply to this | link to this | view in thread ]

  4. icon
    NeghVar (profile), 5 Dec 2018 @ 12:49am

    As usual, justice goes to the highest bidder.

    reply to this | link to this | view in thread ]

  5. icon
    That Anonymous Coward (profile), 5 Dec 2018 @ 2:19am

    Like many things, if there was a cost attached perhaps people would behave better.

    A bogus DMCA notice costing even $1 would vastly improve the firehose of crap notices.

    A bogus SLAPP suit resulting in you are paying your targets costs & an award of damages.

    Monster Energy would be out of business if they were forced to pay their targets for the damage they have inflicted over imagined issues that only exist in the minds of their lawyers trying to earn that retainer.

    Imagine an NPE unable to buy off a jury in East Texas having to pay costs to an innovator who wasn't anywhere near the patent for a dog whistle that they tried to claim was part of a cell phone design.

    They are citizens my friends, so perhaps we need a few laws to make them be good citizens...

    reply to this | link to this | view in thread ]

  6. icon
    PaulT (profile), 5 Dec 2018 @ 3:00am

    Re: Bullies suck

    "the best thing we can do is boost the signal and ensure that Monster faces bad publicity for it's shitty behavior"

    Except, that won't really work as most of their customers won't give a damn about such legal issues.

    It's a fair comment in cases where the abuse relates to something that the people paying them will care enough about to take action. But, in a world where clothing giants can retain huge profits after it's revealed that they use child labour to make their products, it's unlikely that people are going to base their choice of beverage on how the company uses its legal team.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 5 Dec 2018 @ 5:23am

    Re: Re: Bullies suck

    But, in a world where clothing giants can retain huge profits after it's revealed that they use child labour to make their products...

    Because that's not a #MeToo issue.

    reply to this | link to this | view in thread ]

  8. icon
    PaulT (profile), 5 Dec 2018 @ 6:05am

    Re: Re: Re: Bullies suck

    "Because that's not a #MeToo issue."

    Actually because it's not a first world issue and too many consumers will happily ignore human rights abuses in the third world so long as they get cheap crap.

    Whereas, the movement you referenced addresses the abuse and harassment of women in the first world, and so is closer to home for the average retail consumer and thus more likely to be actioned upon by them.

    reply to this | link to this | view in thread ]

  9. icon
    Gary (profile), 5 Dec 2018 @ 6:43am

    Re:

    They are citizens my friends, so perhaps we need a few laws to make them be good citizens...

    Just have to wonder how the anti-regulatory shills will respond. "The only way to fix this is less government oversite!" Because the free market will fix everything!

    Monster isn't really interested in the cost in this case - After filing an obviously frivolous lawsuit they'd gladly pay the extra legal fees if it meant suressing competition. This seems like something the FTC should have a say in to slap them for anti-competitive behaviour?

    reply to this | link to this | view in thread ]

  10. icon
    PaulT (profile), 5 Dec 2018 @ 7:19am

    Re: Re:

    "Monster isn't really interested in the cost in this case"

    Exactly. According to Wikipedia, Monster's net income for 2017 was $821 million. The company they just sued has pretty much collapsed because they had to spend £30,000 to defend themselves (approx 38,000 US$) and need a similar amount just to start a limited initial product run. Or, judging by a quick calculation, less than an hour's NET income for the larger company. Pocket change.

    They're not going to stop any time soon unless the behaviour either leads to severe reprimands from authorities or a hit on their bottom line from sales, and sadly neither seems likely at the moment.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 5 Dec 2018 @ 7:25am

    Re:

    Perhaps we do need some laws like that. DMCA, SLAPP, both of those are US law. You did catch that this is a UK trademark case?

    So yeah. We need laws like that. But everywhere, not just in the US.

    reply to this | link to this | view in thread ]

  12. icon
    nasch (profile), 5 Dec 2018 @ 8:39am

    Loser pays?

    Doesn't the loser pay the winner's legal fees in the UK?

    reply to this | link to this | view in thread ]

  13. icon
    PaulT (profile), 5 Dec 2018 @ 8:50am

    Re: Loser pays?

    The legal fees won't be the only issue, however. They've had overheads and other costs associated with having set up a company whose sole product they have been blocked from selling for 2 years. That wouldn't be regained if there's not an additional fine levied against Monster for wasting their time, which doesn't appear to be the case.

    Even if they get every penny of fees paid for them, they're still very much in the red. Not as much as they would in the US, perhaps, but it seems to be enough to have the desired effect.

    reply to this | link to this | view in thread ]

  14. icon
    Scott S. (profile), 5 Dec 2018 @ 1:24pm

    Trademark bullying works.

    This post about the Thirsty Beasts case does a great job illustrating why "Trademark bullying works."

    But I wonder how much Thirsty Beasts and other victims of Monster Energy worked together to share info and resources?

    One of the main reasons why trademark bullying works is because so few victims or their attorneys share info and resources with others. This is largely the fault of attorneys because most are control freaks who show little interest or ability in sharing info and resources with others facing similar issues. Most also lack knowledge or interest in the court of public opinion, so their clients' cases receive little if any media coverage, and they pretty much battle and suffer in silence.

    I think it borders on legal malpractice when attorneys refuse to work with others facing similar issues, or are clueless about the court of public opinion. Most doctors who have a client facing a unique life-threatening medical condition will reach out to others who may have helpful info or resources. But most attorneys won't lift a finger to work with others, even if their client's business is facing a potentially business-killing legal battle.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 5 Dec 2018 @ 3:35pm

    Re:

    DMCAed.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 5 Dec 2018 @ 4:46pm

    Re:

    Hey Jhon! How’s it going? Last we heard you were on your knees tryin to make enough money to pay someone to give a shit about you.


    How’s that work out for ya?

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 5 Dec 2018 @ 7:26pm

    Re: Re: Re: Re: Bullies suck

    It's interesting what people are sensitive about and what they aren't.

    reply to this | link to this | view in thread ]

  18. icon
    PaulT (profile), 6 Dec 2018 @ 12:29am

    Re: Re: Re: Re: Re: Bullies suck

    Well, yes and no. In these cases, it's quite simple. More people in the first world - the places that dominate things like Twitter and fashion retailing - are going to be able to personally relate to women being sexually harassed than they are with an 8 year old in some third world slum being forced to work in a sweatshop.

    You can argue whether that priority is correct, and it's a damn shame that some people will essentially pay to support child slavery because they don't personally relate to the situation, but it's not particularly hard to figure out why.

    reply to this | link to this | view in thread ]

  19. identicon
    control freaks, 7 Dec 2018 @ 7:31am

    Re: Trademark bullying works.

    There is a thing called attorney-client confidentiality. You can not breach that without a client waiver. And most clients want their privacy. It would be legal malpractice if you shared any information.

    Most cases are different and most likely wouldn't be much help anyway. And to compare medical and civil issues is ridiculous.


    You should do a little research before speaking on issues you have no experience or knowledge on.

    reply to this | link to this | view in thread ]

  20. icon
    Scott S. (profile), 7 Dec 2018 @ 12:18pm

    Re: Re: Trademark bullying works.

    Congratulations on being smarter than all the countless attorneys who know how to work with others and how to publicly advocate for their clients. Unlike you, some people don't have to hide behind a keyboard.

    reply to this | link to this | view in thread ]

  21. identicon
    control freaks, 7 Dec 2018 @ 1:12pm

    Thank you, I appreciate that.

    I am surprised that you did not learn anything from the past. Ignorance of the law is what got you to this point.

    But you are not alone. I know many that think bad law is an invitation to break it.

    reply to this | link to this | view in thread ]


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