TTABlog Test: Is MONSTER STRAW for Drinking Straws Confusable with MONSTER for Energy Drinks?
Frequent TTAB litigant Monster Energy opposed an application to register the mark MONSTER STRAW (in standard character form) for "drinking straws" [STRAW disclaimed], alleging likelihood of confusion with its registered mark MONSTER for "energy drinks; fruit drinks; soft drinks; sports drinks." The dispute boiled down to a question of the relatedness of the goods. How do you think this came out? Monster Energy Company v. Monster Straw Company, LLC, Opposition No. 91250784 (April 14, 2025) [not precedential] (Opinion by Judge Cheryl S. Goodman).
Monster Energy relied on seventeen registrations for MONSTER, MONSTER ENERGY, MONSTER-formative marks, and MONSTER ENERGY-formative marks in connection with various goods and services, including beverages, beverageware, nutritional supplements in liquid form, and restaurant and bar services. It claimed to own a family of MONSTER marks but the Board was unimpressed, finding opposer's testimony to be vague, ambiguous, and conclusory, and insufficient to demonstrate such use and promotion of the "MONSTER family feature" that would show that the public "recognizes a MONSTER family of marks."
The Board focused on opposer's registration for the mark MONSTER for "energy drinks; fruit drinks; soft drinks; sports drinks," because that registration had the "most points in common with Applicant's mark." Not surprisingly, the Board found applicant's mark to be "highly similar in sound, appearance, connotation and commercial impression." The first DuPont factor therefore weighed "heavily" in opposer's favor.
The Board then found the mark MONSTER to be arbitrary and conceptually strong, but opposer's evidence fell short of showing that MONSTER by itself is commercially strong. Because opposer uses its marks on a variety of goods, the Board found that the ninth DuPont factor favored opposer. [What about the mark MONSTER by itself? was it used on a variety of goods? - ed.].
The channels of trade for drinking straws and energy drinks overlap, as do the classes of consumers (the general public). These low-priced items are purchased with no more than ordinary care.
Turning to the second DuPont factor, the relatedness of the goods, opposer submitted photographs of “how Monster’s beverages are served and consumed, including through straws.” One photo showed a licensed "“flavored ice” MONSTER ('Slurpee') product sold by 7-Eleven in 2008 and 2009 that was offered with straws." [Isn't that item of evidence a bit stale (assuming a Slurpee could go stale)? - ed.]
The Board concluded that "Opposer’s beverages and Applicant’s straws are often used together when consuming beverages, are complementary goods, and thus related." [How about sugar and coffee? Bread and butter? Shouldn't the question be whether the goods are sold under the same mark by third parties? - ed.]
Where evidence shows that the goods at issue have complementary uses, and thus are often used together or otherwise purchased by the same purchasers for the same or related purposes, such goods have generally been found to be sufficiently related such that confusion would be likely if they are marketed under the same or similar marks.
The Board found confusion likely and it sustained the opposition.
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TTABlogger comment: The applicant appeared pro se, submitted no testimony or evidence, and did not file a brief. That worked well! In the real world, would someone who bought a 7-11 MONSTER Slurpy with a straw in it think that Monster Energy was the source of the straw. Or that packs of straws sold in the same store were offered or licensed by Monster Energy?
Text Copyright John L. Welch 2025.