"DARK DECEPTION: MONSTERS & MORTALS" for Game Software Not Confusable with MONSTER ENERGY, Says TTAB

Frequent TTAB litigant Monster Energy was quickly shown the exit in this opposition to registration of DARK DECEPTION: MONSTERS & MORTALS for downloadable game software. Granting applicant's motion for summary judgment, the Board found that "Applicant’s mark is so dissimilar to Opposer’s pleaded marks that no likelihood of confusion can exist as a matter of law." Monster Energy Company v. Glowstick Entertainment, Inc., Opposition No. 91282624 (August 25, 2023) [not precedential].

The Board focused on opposer's mark MONSTER ENERGY, in standard character and design form (shown below), for video, electronic, computer, and interactive games. Applicant Glowstick conceded that the involved goods are identical or closely related and could be sold in the same trade channels to the same classes of consumers, who would exercise ordinary care in their purchasing decisions. For purposes of the summary judgment motion, the Board assumed that Opposer owns a family of MONSTER-formative marks; that Opposer’s marks, including the wording “MONSTER” therein, are conceptually and commercially strong; and that Opposer’s marks are famous, including for video, electronic, computer, and interactive games.

Turning to the marks, the Board noted that “DARK” and “DECEPTION,” as the first words in applicant’s mark, are “'most likely to be impressed upon the mind of a purchaser and remembered,' such that they are the most dominant elements of the mark." Furthermore  the letters "MO" that begin “MONSTERS & MORTALS” have an" alliterative, lilting cadence."

Accordingly, consumers are likely to view “MONSTERS & MORTALS” as a whole, and take from Applicant’s mark a different meaning and commercial impression than Opposer’s MONSTER ENERGY marks and its family of MONSTER-formative marks. Specifically, Applicant’s mark conveys a duality between “creature[s] having … strange or frightening appearance[s]” and “human[s],” i.e., “MONSTERS & MORTALS,” and, separately, “[a] ruse” or “trick” that is “[e]vil in nature or effect” or “sinister,” i.e., “DARK DECEPTION.” These connotations are completely absent from Opposer’s family of MONSTER-formative marks, which at a minimum convey only “[a] creature having a strange or frightening appearance” (to the extent “MONSTER” is perceived as a noun).

The wording “MONSTER ENERGY” in Opposer's marks connotes "a large amount of energy or a creature with a strange or frightening appearance and a high level of energy," further distinguishing the connotations of the marks.

The Board acknowledged that applicant Glowstick's mark could be displayed in a manner that emphasizes the word MONSTER, but "'DARK' and 'DECEPTION' still precede 'MONSTERS,' and 'MORTALS' still follows 'MONSTERS,' and the marks in their entireties remain different in how they look and sound, in the meaning they convey, and the commercial impression they create."

And so, the Board dismissed the opposition.

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TTABlogger comment: Do you expect Monster Energy to bring a civil action for review?

Text Copyright John L. Welch 2023.