Monster Energy Company was the biggest trademark bully of 2017. And 2016. And 2015. In fact, Monster Energy Company has been the biggest trademark bully since 2012.
A “brand bully” is a company that files a large amount of oppositions to trademark applications. Before a trademark is registered by the U.S. Patent and Trademark Office (USPTO), the mark is published for opposition on the Official Gazette. Anybody who believes they may be damaged by registration of the mark has 30 days from publication to file either (1) an opposition or (2) request an extension to file an opposition. An opposition is similar to a proceeding in a federal court, but is held before the Trademark Trial and Appeal Board (TTAB), an administrative court within the USPTO. If an opposition is successful, the TTAB will cancel the application, if not then the mark will proceed with the registration process. Filing oppositions can often be necessary to defend your trademark. A party becomes a “trademark bully” when they file an excessive amount of oppositions, sometimes beyond the scope of law as a way to increase the power of their mark.
Utilizing public information on the USPTO’s Trademark Status and Document Retrieval (“TSDR”) site, Trademarkia is able to compile a list of the top 25 companies who filed the most oppositions to trademark applications since 1999. Monster Energy Company has topped the list since 2012, the year Hansen’s Natural changed their name to Monster Beverage Corporation
Hansen’s juice and soda company was founded in 1935. In 2012, they changed their name to Monster Beverage Corporation. Two years later, they entered into a strategic partnership with Coca-Cola when they acquired a 16.7% equity stake in Monster. As part of the partnership, Coca-Cola transferred its energy drink brands to Monster and in return received Monster’s non-energy drink brands, such as Hansen’s Natural Sodas. Monster Beverage Corporation also has a preferred distributor agreement with Coca-Cola.
From 1999 to 2014, energy drink sales increased in the US by 5000% and although they increase slower today, energy drinks sales are projected to increase through the 2020s. In 2014, the American Academy of Pediatrics’ published a report that between 1999–2010 that found that the average caffeine intake of children and teenagers stayed the same but “coffee and energy drinks represent a greater proportion of caffeine intake as soda intake has declined.” Coca-Cola’s partnership with Monster was probably a smart business move, even though the energy drink craze of the mid-2000s has leveled off.
Monster Energy Company has 77 registered marks, mostly in International Class 032 for non-alcoholic beverages. In addition to the famous “M” they have number of interesting wordmarks: MUTANT (Reg. No. 5096987), RIPPER (Reg. No. 5022676), UNLEADED (Reg. No. 4993825), and STAMINA (Reg. No. 4313276).
In March 2015, Monster filed an opposition against GARRA, a children’s soccer league in San Antonio, Texas. The soccer club filed in Class 25 for footwear, jerseys, shorts, and socks, and in Class 41 for motivational speaking and sports training services. Monster Energy Company’s stylized “M” is registered in Class 25 for t-shirts, hoodies, sweatshirts, jackets, pants, bandanas, sweatbands, gloves, hats, and beanies, and Class 9 for sports helmets, video recordings featuring sports, extreme sports, and motor sports. The Futbol Club Garra, Inc answered Monster’s opposition but abandoned the trademark application before trial began.
In December 2017, Monster filed an opposition against MASTER-BAIT, an intent-to use application filed by Idaho bear hunting company. The mark is filed under Class 028 for bear attractant. Monster does not have any marks registered or applied for in Class 028. Currently, the case is pending before the TTAB.
In June 2016, Monster filed an opposition against MONSTROUS BLISS. An Iowa resident filed an intent-to-use application under the proposed mark in Class 030 for candy. Monster has 13 marks registered in Class 030 for ready to drink coffee, iced coffee and coffee-based beverages; ready to drink flavored coffee, iced coffee and coffee-based beverages such as JAVA MONSTER. The TTAB found in favor of Monster on default as the applicant never submitted an answer to the opposition.
In June 2016, Monster filed an opposition against multiple applications for the mark TO 16 applied for by the National Basketball Association (NBA Properties, Inc) in Class 041 for entertainment and educational services related to basketball. The proceedings were suspended for settlement with consent from TTAB but the problem seems to unresolved and Monster Energy Company’s brief as defendant is not due until July 1, 2018.
In June 2017, Monster filed an extension of time to oppose M MARTHA STEWART which was granted. Martha Stewart’s application was filed in International Class 035 for wine and wine club. However, Monster never submitted an opposition and Martha Stewart’s mark was registered.
Monster Energy Company owns some famous marks, such as the lime green “M” mark, however, they are a “brand bully” because they will go after anyone who has “Monster” or claw marks in their mark, regardless if they would be successful on the claims. Marks that are similar can be registered by the USPTO for a number of reasons, including if there is not a likelihood of confusion by consumers. It is unlikely that a consumer buying pellets to attract bears for hunting is going to confuse red an black claw marks with Monster’s lime green claw marks for non-alcoholic drinks. So far, the only applicants who resist Monster’s oppositions are large brands like the NBA. Many applicants once their marked is opposed give up, either by abandoning their mark or not filing so the court rules in Monster’s favor on default. Monster Energy Company has been the number one filer of oppositions for the last 7 years, and look like they will reach that again this year. Brand bullies will keep winning if applicant’s don’t fight back and respond to their oppositions.
Kate Montgomery is a 3L at Arizona State University’s Sandra Day O’Connor College of Law. Kate previously attended the University of Arizona where she earned her undergraduate degree in Spanish and Philosophy, Politics, Economics, and Law (PPEL). When Kate is not studying or working, she enjoys trivia nights, making costumes, and visiting with friends and family.