Monster Energy Fails Its Attempt To Claim That Its Beverages Are Indistinguishable From Industrial Paint

from the dipsticks dept

One of the things that's always coaxed a wry laugh from me is when there is some trademark dispute between two entities that results in a claim that customers will be confused between two products which, if that were true, would make the plaintiff's product sound really gross. Examples include that time Benihana suggested the public might eat a rap artist thinking it was their food, or when Makers Mark thought that people might somehow mistake its whiskey for tequila, which doesn't say much for its whiskey.

Perhaps Monster Energy saw these and other past examples of this and was all, "Hold my beer.", because it filed a trademark opposition against Monster Dip, which makes industrial paint and coatings.

Monster had filed the appeal with the EU General Court after the European Union Intellectual Property Office (EUIPO), in April 2016, dismissed its opposition to a trademark registered by German resident Marco Bösel. Bösel applied to register a figurative trademark for ‘Monster Dip’ in 2014. The classes covered by the trademark are 2, 37 and 45. These include paints, coating preparations and the painting of vehicles.

Monster opposed the registration, arguing that it would infringe its registered trademarks for ‘Monster Energy’. The Opposition Division of the EUIPO rejected Monster’s claim in April 2016, with the EUIPO also rejecting Monster’s subsequent appeal in February 2017.

As Monster Energy doesn't have trademarks for those classes, all it can really be suggesting is that there would be some confusion in the public that Monster Dip's products were associated in some way with Monster Energy's. And that suggestion sure sounds like Monster Energy suggesting that the public may not be able to tell its energy drink beverages from industrial paint. Which is amazing. I mean, I've had this exact thought for years, but getting Monster Energy to admit as much is deeply satisfying.

Fortunately for Monster Dip, Monster Energy's final appeal to the EU courts failed.

Monster’s most recent appeal was brought to the General Court in July last year, seeking a rejection of Bösel’s registration for the trademark and an order for the EUIPO to pay costs. The court ruled that there was not sufficient similarity in the goods and services covered by each company’s respective trademark to cause confusion over the provider of those goods and services. Affirming the EUIPO’s decision, the court found that the sections of the “relevant public” who would understand the words ‘monster’ and ‘energy’ would also be able to distinguish between the two brands.

The court ordered Monster Energy to pay costs.

It's the last bit of this result that has me so very confused as to why Monster Energy continues to do this to itself.


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  • icon
    Anonymous Anonymous Coward (profile), 18 Dec 2018 @ 6:29pm

    Confusion in the market place

    " Which is amazing. I mean, I've had this exact thought for years, but getting Monster Energy to admit as much is deeply satisfying."

    You hit the ball out of the park. I have never tried Monster Energy's drink because that is exactly what I though they might be selling, watered down industrial sludge. But paint works too.

    I want to thank Monster Energy for clearing up any confusion as it certainly appears that they were worried about an industrial paint company siphoning off beverage drinkers, leaving no doubt about the source for Monster Energy's drinks.

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

    • identicon
      Anonymous Coward, 19 Dec 2018 @ 8:21am

      Re: Confusion in the market place

      i always thought the radioactive/toxic green was a dead giveaway.

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

      • identicon
        Anonymous Coward, 19 Dec 2018 @ 9:52am

        Re: Re: Confusion in the market place

        I had to return some when it failed to adhere to the surface.

        In fact, it seemed to work more like a solvent than a paint, causing my primer to bubble and flake. Would not buy Monster Energy industrial paints again, nor recommend them to a friend.

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

  • icon
    Gary (profile), 18 Dec 2018 @ 7:57pm

    Sludge

    Hey, I was about to spray energy drink on my car parts until I read this article, thanks for clearing up my confusion!

    I've always preferred "Rock Star" energy drink. I'm waiting to see them start suing musical performers but so far that hasn't happened. Which is confusing in itself - why aren't their lawyers going on the Trademark warpath against actual rock stars??

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

  • identicon
    Anonymous Coward, 18 Dec 2018 @ 8:27pm

    But where is Monster Cable in all of this?

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

  • identicon
    Anonymous Coward, 18 Dec 2018 @ 8:29pm

    Awful

    I give the new flavor by Monster a 0 out of 5... I tried the customer hotline, but there must have been some problem that day because I kept getting connected to some other beverage company... Poison Commander or something

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

  • icon
    ECA (profile), 18 Dec 2018 @ 8:56pm

    Busy work

    Just as we did in retail...find something to do...or get fired..
    Lawyers need something to do..not alwasy smart, but it makes it look like they are doing something.

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

  • identicon
    ryuugami, 18 Dec 2018 @ 9:38pm

    the court found that the sections of the “relevant public” who would understand the words ‘monster’ and ‘energy’ would also be able to distinguish between the two brands.

    A more polite way of saying, "despite what you may think, your customers are not complete morons". Nice burn by the court :)

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

    • icon
      That One Guy (profile), 18 Dec 2018 @ 9:59pm

      'I mean really, they're dumb enough to buy from US.'

      As always cases like this showcase nicely just how monumentally stupid certain companies seem to think their customers are.

      'Your Honor, our customers are so incredibly stupid that they would absolutely confuse an energy drink with industrial paint if we let this trademark go through, which is why we have filed an objection to it on the grounds of potential customer confusion.'

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

      • identicon
        Anonymous Coward, 19 Dec 2018 @ 10:02am

        Re: 'I mean really, they're dumb enough to buy from US.'

        On the other hand... companies often do this sort of thing because while they have to pay the fees on a single suit, they are definitely defending their (often weak) mark, and so won't lose it... PLUS they often win these against a whole bunch of other little players before they lose one, so they turn a profit on average.

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

  • icon
    That One Guy (profile), 18 Dec 2018 @ 9:50pm

    Understandable concern

    Monster energy drink, paint... I can see their confusion and concern that their customers might be confused as well, I wouldn't want to drink either of those, and for roughly the same reason.

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

    • icon
      JoeCool (profile), 19 Dec 2018 @ 5:56am

      Re: Understandable concern

      I've always felt that Monster Energy drinks were indistinguishable from industrial solvent, so I can understand why they got confused with industrial paint. ;)

      It's the last bit of this result that has me so very confused as to why Monster Energy continues to do this to itself.

      It's not confusing at all - any time you see something like this, it's a law firm making work for itself. The company pays them, win or lose. Lawyers and law firms trying to invent work from nothing are behind nearly every situation that seems bonkers.

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

  • identicon
    Anonymous Coward, 18 Dec 2018 @ 10:01pm

    Even a moron in a hurry can probably distinguish a beverage from...whatever it is that Monster Dip does. What do they do? They paint cars? Yeah.

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

    • identicon
      Anonymous Coward, 19 Dec 2018 @ 2:26am

      Re:

      only morons that have manage to live past say, five (and thus not died in a horrible, easily prevent, and self inflicted accident/tragidy).

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

  • identicon
    paxdiablo, 18 Dec 2018 @ 11:08pm

    No doubt ...

    ... it would have had more luck arguing its beverages were indistinguishable from cat urine :-)

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

  • icon
    hamillhair (profile), 18 Dec 2018 @ 11:32pm

    Given the blatant similarity between Monster energy drinks and industrial chemicals, I would say that there probably is cause for confusion in this case.

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

  • identicon
    Anonymous Coward, 19 Dec 2018 @ 5:37am

    Is there such a thing as monster condoms? If not, I'm heading to the trademark office.

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

  • icon
    Lawny (profile), 19 Dec 2018 @ 6:01am

    Monster is such an arbitrary word to claim, and I bet it's because common lexicon no longer uses 'Monster Energy'.

    I can't think of the last time I heard someone say "Can you get me a Monster Energy Drink". Just a 'Monster'. How long until this starts bleeding into other words? Or do we just preface everything with ™ to ensure we are always honoring trademarks?

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

    • identicon
      Valkor, 19 Dec 2018 @ 1:28pm

      Re:

      Well, a mark becoming generic is something legitimate to fear, but I don't think Monster is remotely close to linoleum as a generic term.

      This suit is about confusion, not generic use. I really wouldn't be surprised if Monster's trademark lawyers know the difference between the two categories, but don't want to tell Monster. Seriously, why shut down that gravy train?

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

      • icon
        Lawny (profile), 21 Dec 2018 @ 5:20am

        Re: Re:

        You make a very valid point. Taking just the confusion factor into account... how often do people _really_ mistake the intent of an energy drink versus industrial paint?

        It's a non-comparison they made which explains why this seems so absurd.

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

  • identicon
    David, 19 Dec 2018 @ 6:28am

    Clearly monster dip was creating confusion in the market

    Monster Energy probably lost thousands of customers that bought Monster Dip in confusion and stuck with it because sniffing it was so much more gratifying than sniffing Monster Energy.

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

  • identicon
    Anonymous Coward, 19 Dec 2018 @ 9:18am

    Trademark lawyers are the most easily confused people on the planet. My guess is that they lack object permanence.

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

  • identicon
    Anonymous Coward, 19 Dec 2018 @ 10:22am

    The legal system should really not be as black and white as either "you win" or "you lose". There should be a "sorry no, you lose" and a different "you lose and now we'll rip you a new one for wasting everyone else's time and money with something this obviously frivolous".

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

    • identicon
      ryuugami, 19 Dec 2018 @ 3:50pm

      Re:

      There should be a "sorry no, you lose" and a different "you lose and now we'll rip you a new one for wasting everyone else's time and money with something this obviously frivolous".

      There is:

      The court ordered Monster Energy to pay costs.

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

  • identicon
    Anonymous Coward, 19 Dec 2018 @ 10:22am

    I'd imagine even if it happened, one sip of the paint would confirm, "I bought the wrong thing!". If not, well that says more about Monster Energy than anything else....

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

  • identicon
    Anonymous Coward, 19 Dec 2018 @ 10:48am

    Every nation drinks the Monster Energy it deserves...?

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


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