4 August 2022TrademarksSarah Speight

Monster ‘reigns’ in trademark dispute, rules 11th Circ

Energy drinks brand claims victory over packaging dispute | “Hard-fought case” ends with defendant’s claims of infringement being “totally debunked” | Knobbe Martens.

Monster Energy has prevailed against a rival that had accused it of copying the packaging of its ‘Reign’ energy drinks in a trade dress and trademark infringement dispute.

US District Judge Roy Altman affirmed discovery sanctions against Vital Pharmaceuticals (VPX Sports, or VPX)—maker of the ‘Bang’ energy drink—in the Eleventh US Circuit Court of Appeals in Florida yesterday, August 3.

The trial also involved Reign Beverage Company as Monster’s co-appellant, and JHO Intellectual Property Holdings, owner of the VPX trademark, as a cross-defendant.

The decision upholds a judgment handed down in August 2021, which Monster had filed against VPX in a trade dress and trademark suit.

After what Judge Altman called a “hard fought case”, the court found VPX’s claim—that Monster's Reign drinks infringed VPX’s trade dress—was "totally debunked” and that its case had been “left in shambles”.

This summation followed a nine-day bench trial that took place after the court granted Monster’s motion to dismiss VPX’s claim, including its demand for a jury trial.

War waged

“Through this lawsuit, VPX took its war with Monster—previously waged in the marketplace—into the courts, seeking to drive its rival’s competing energy drink out of business,” said the court last year.

“For one thing, VPX couldn’t establish that its trade dress was entitled to protection,” it continued. “It couldn’t show, for instance, that the Bang can—which closely resembles the iconic (and original) Monster Energy drink—is inherently unique or distinctive.

“Nor could it show that its trade dress carries any secondary meaning in the minds of consumers.”

The court added that VPX had opened the trial by revealing a “shocking (and entirely new) theory: that Monster had stolen the precise colours Bang had used in its cans—down to the very last shade—in a craven effort to pass its product off as Bang’s.”

No likelihood of confusion

The court also held that VPX had failed to show a likelihood of consumer confusion among consumers over the Reign and Bang brands.

“The two drinks, after all, incorporate significant differences—starting with their names and logos—which allow consumers to easily distinguish between them in a crowded marketplace of black energy drinks.

“On top of that—despite selling millions of Bang cans and conducting a (half-hearted) survey—VPX ended up presenting no evidence of actual confusion.”

In the district court order on August 3, Judge Altman imposed discovery sanctions and refused VPX’s jury demand, while denying Monster’s motion for sanctions.

Responding to the outcome of the judgment this week, Knobbe Martens’ managing partner Steven Nataupsky, who led the team representing Monster, said: “Following a resounding trial victory, we are quite pleased with today’s decision, which affirms that the court correctly dismissed VPX’s damages claim.

“I am particularly proud of the exceptional work of our team which led to this excellent result for our client.”

Long-running rivalry

Monster has engaged in a series of previous lawsuits to protect its brand.

Monster has filed many lawsuits over its products. In July this year Monster and its co-defendant Orange Bang successfully won $175 million in damages from VPX for infringing the ‘Bang’ trademark, in one of the US’s biggest trademark suits.

That particular case had begun in 2009 when Orange Bang sued VPX, alleging that the Bang-branded pre-exercise drinks that it sold at the time would cause consumer confusion.

In April 2019, Monster accused VPX of false advertising, anti-competitive behaviour and stealing trade secrets relating to VPX’s Bang energy drink.

This followed a complaint issued the previous month,  March 2019, in which VPX accused Monster Energy of “shamelessly copying” the trade dress of its energy drinks brand Bang.

VPX’s complaint stated: “Monster created Reign to market a line of energy drinks that blatantly infringed the trade dress VPX used on its ‘Bang’ line of energy drinks to confuse consumers.”

WIPR has contacted VPX/Bang Energy for comment.

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