17 June 2020TrademarksSarah Morgan

Monster Energy secures ‘Monster Munch’ TM win

In a loss for  Frito-Lay, the American subsidiary of PepsiCo, the UK Intellectual Property Office (IPO) has sided with  Monster Energy in a trademark opposition.

Earlier this month, Monster Energy successfully  opposed Frito-Lay’s attempt to register ‘Monster Munch’ for yoghurt and cereal bars.

Back in 2016, Frito-Lay applied to register ‘Monster Munch’ as a trademark, covering a range of goods in classes 29 and 30.

Monster Energy subsequently opposed the trademark for yoghurt and cereal bars, claiming that the trademark was too similar to its four EU trademarks: ‘Monster’, ‘Monster Detox’, ‘Monster Energy’, and ‘Coffee Monster’.

The Monster Munch brand was launched in the UK in 1977 and is best known for its corn-based snacks.

Joseph Ferretti, the global trademark counsel of PepsiCo, argued that the evidence submitted demonstrates that consumers and the general public alike, throughout the UK, are highly aware of the ‘Monster Munch’ brand and products.

However, Andrew Feldon, on behalf of the IPO said: “The applicant’s evidence does not show any use at all of the contested mark on the goods that have been applied for under the application at issue. Whilst the applicant may wish to make a link between its corn snacks sold in bags and eg cereal bars or granola bars, the evidence does not show that the applicant has used the ‘Monster Munch’ mark on such goods.”

Feldon then turned to the goods at issue, concluding that the contested yoghurt falls under Monster Energy’s broader goods of dairy-based beverages and milk-based beverages containing coffee. He also found the other goods similar to at least a low degree.

On comparing the trademarks, the IPO said: “The opponent submitted that the word ‘MUNCH’ in the contested mark is the least distinctive element of that mark as it has an allusive connotation when considered in the context of at least the majority of the contested goods. I agree with the opponent.”

After finding that the word ‘Monster’ played a greater role in the overall impression of the mark, Feldon stated that the marks were visually and aurally similar to a medium degree.

“As both marks share the conceptual hook of a monster, and as I have found that it is this element of the contested mark that plays the greater role in that mark, I conclude that the marks are conceptually similar to a high degree,” said Feldon.

He also concluded that Monster Energy’s trademark was highly distinctive on account of its use for energy drinks, but that the drinks company didn’t provide evidence to show its mark had a reputation for dairy-based beverages.

In finding that there was no likelihood of direct confusion, the IPO said: “The word ‘Munch’ in the contested mark, whilst somewhat allusive and suggestive, will not go unnoticed. It is not the most common or obvious term to apply to foodstuffs, even those goods that may be munched noisily such as a granola or cereal snack bar.”

However, Feldon went on to conclude that indirect confusion would occur, stating that the additional word ‘Munch’ will serve to ensure that the average consumer will assume the contested mark is a variant mark from the ‘Monster’ range of products or a brand extension.

Subject to appeal, Frito-Lay’s trademark application was refused for yoghurt and cereal bars. However, the application will proceed to registration for goods that weren’t opposed, such as potato-based snack foods, sugar, and cereals.

Frito-Lay has been ordered to pay £1,500 ($1,881) to Monster Energy.

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