18 July 2016Trademarks

Monster Energy falls foul of General Court again

Drinks maker Monster Energy has failed in its attempt to oppose a trademark application for a sign similar to its logo.

In a decision handed down by the EU General Court, California-based Monster was told its trademarked logo, three scratch marks in the shape of an ‘m’, was not distinctive enough when used for goods and services including clothes, shoes and hats.

The dispute started in 2012 when Monster opposed a trademark application that another company, Mad Catz Interactive, had filed at the European Union Intellectual Property Office (EUIPO).

That application, covering class 25, which includes clothing, footwear and headgear, was for four scratch marks on top of each other.

Monster opposed the application in May 2013 citing earlier trademarks it owns that cover class 25.

But in a decision handed down in July 2014, the Opposition Division at the EUIPO rejected Monster’s claim. Monster appealed against that decision but, in a 2015 ruling, the EUIPO’s Fifth Board of Appeal confirmed the ruling.

Monster then appealed against that judgment to the General Court.

In its decision, handed down on July 14, the court said that not only did Monster fail to prove distinctiveness with regard to class 25, but there were also conceptual differences between the two marks.

“The mark applied for depicts a black square on which four diagonal parallel white lines are placed which might be perceived by the public as ‘scratches’, white brush strokes or a purely abstract device, whereas the earlier mark shows three vertical parallel black shaky lines of different lengths.”

The court added that from the perspective of the relevant public the lines might resemble three fingers or claws or a “very abstract depiction to which no specific and clear meaning can be attributed”.

“Contrary to what is suggested by the applicant, it cannot, therefore, be considered that the only perception likely to be retained visually by the relevant public would be a scratch,” the court added.

Monster has been ordered to pay costs.

It is the second time the drinks company has failed to convince the General Court to overturn EUIPO rulings.

Last year, WIPR reported that it had failed to convince the court to halt Luis Yus Balaguer’s trademark application for a figurative mark including the term ‘Ice expresso + energy coffee’.

Balaguer sought protection covering vending machines, coffee and tea-based beverages, energy drinks and retail services in his 2011 application.

Monster claimed the mark was too similar both conceptually and phonetically to its own European Union trademarks (EUTMs) and would cause a likelihood of confusion. In its opposition it cited three of its own EUTMs, ‘X-Presso monster’, ‘Hammer M X-Presso monster espresso + energy’, and ‘Midnight M X-Presso monster espresso + energy’.

But the court was not convinced and said the EUIPO was correct to state that the visual and phonetic similarities between the marks were very low.

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