31 August 2018Trademarks

Monster Energy suffers setback in ‘Mutant’ TM battle

WIPR has recently reported on numerous trademark oppositions filed by drinks maker Monster Energy, but this week, the UK Intellectual Property Office (IPO) handed down a decision on Monster’s attempt to register a trademark.

On Tuesday, August 28, the IPO refused Monster’s ‘Mutant’ trademark for class 5, which includes nutritional supplements, while allowing the application to proceed for goods in class 32 (which covers non-alcoholic drinks).

Monster applied to register the mark in September last year but Fit Foods, a maker of nutritional supplements, partially opposed the registration for class 5.

Canada-based Fit Foods owns EU trademark number 12,436,291 for ‘Mutant’, covering dietary and nutritional supplements and protein powder, among other goods.

S Wilson, on behalf of the IPO, noted that both marks featured the word ‘Mutant’ in a capitalised font and that they were “clearly identical”.

Fit Foods argued that Monster’s class 5 goods are identical because they all fall within the meaning of “dietary and nutritional supplements”, a contention that Wilson agreed with.

The IPO said that “dietary and nutritional supplements” in Monster’s specification and “nutritional supplements” in Fit Foods’ specification are clearly identical, and that other goods, such as “nutritional supplements in liquid form”, fall within the phrase.

This left “herbal beverages” and “herb-enriched beverages” in the applicant’s specification to consider.

“The average consumer will be familiar with the concept of herbs being used for their health enhancing properties and their benefit to general and dietary well-being. Such goods are, in my view, to be regarded as identical,” said Wilson.

Wilson went on to consider whether the goods were similar, if they were not identical.

After finding that the goods share a high degree of similarity and that Fit Foods’ trademark has a medium degree of inherent distinctiveness, Wilson concluded that there is a likelihood of confusion.

The application was refused for class 5 goods and Monster was ordered to pay Fit Foods £300 ($391).

Earlier this month, WIPR reported that the IPO had dismissed two separate trademark oppositions brought by Monster. Two months before, Monster failed to prevent the registration of ‘Monster Castle’ in Singapore, a trademark applied for by Chinese investment conglomerate Tencent Holdings.

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More on this story

17 August 2018   The UK Intellectual Property Office this week dismissed two separate trademark oppositions brought by energy drinks brand Monster Energy.
18 June 2018   Energy drinks maker Monster Energy has failed to prevent the registration of ‘Monster Castle’ in Singapore, a trademark covering a game where monsters protect castles from humans.