Monday, September 11, 2023

MAD MONSTER PARTY for Horror and Pop Culture Conventions and Magazines Not Confusable with MONSTER ENERGY, Says TTAB

Frequent TTAB litigant Monster Energy Company lost another one. The Board dismissed its oppositions to registration of MAD MONSTER PARTY, in standard character form for "Organizing exhibitions for educational and entertainment purposes services, namely, organizing and conducting conventions in the fields of horror and popular culture," and in word-and-design form for "General feature magazine in the field of horror and pop culture." Monster claimed a likelihood of confusion with several registered MONSTER-formative marks used in connection with energy drinks, supplements, fruit juice and soft drinks; clothing, sports bags and stickers; and the services of promoting sports and music events and competitions for others. The Board, deeming the first DuPont factor to be dispositive, found that the marks differ sufficiently in their connotations and overall commercial impressions that confusion is unlikely. Monster Energy Company v. Eben McGarr, Oppositions Nos. 91239678 and 91244601 (September 8, 2023) [not precedential] (Opinion by Judge Frances S. Wolfson).

Monster failed to prove that its claimed family of marks came into existence before applicant's priority date, but the ninth DuPont factor "favors a finding of likelihood of confusion insofar as it relates to the variety of goods upon which Opposer uses its mark. Monster had to prove likelihood of confusion vis-a-vis its individual marks. The Board found MONSTER ENERGY to be "most likely to support a likelihood of confusion claim." It also considered the stylized version of MONSTER for energy drinks.

The Board found MONSTER ENERGY and MONSTER (Stylized) to be conceptually strong, and and commercially well-known for beverages. However, "[t]he use of 'monster' for activities connected to the horror-genre, however, signal the term has been weakened in that category.

Turning to the marks, the Board found that they "engender sufficiently different overall commercial impressions such that they would not be considered confusingly similar.

The wording “MAD MONSTER” personalizes the general idea of a monster and changes it, with assistance from the alliteration and, for the design marks, the portraiture, into a specific character. That is, the word “MAD” does more than simply inform the consumer of the type of monster involved, it forms a unitary phrase personifying the creature. The additional word “PARTY” suggests a gathering of such creatures. These connotations are entirely absent from Opposer’s MONSTER ENERGY or marks. Opposer’s mark MONSTER ENERGY is further attenuated from Applicant’s marks given the meaning of the term “energy,” which imbues the mark with allusion to the energy-providing nature of Opposer’s drinks and supplements; or when applied to extreme sports, competitions, and music events. As for the unusual and unique monster head design, it creates a strong impression upon the viewer by immediately drawing one’s attention, and thus further distinguishes the two marks in which it appears from each of Opposer’s marks.

Monster submitted some evidence of use of its marks in connection with "horror-themed events at which attendees imbibe Opposer’s beverages." However, the Board concluded that consumers "are unlikely to perceive Applicant’s conventions, restricted to the horror and popular culture fields, or its horror and pop culture-related magazines, as emanating from the same source as sporting or music events sponsored by Opposer.

The Board found several other DuPont factors to be neutral: channels of trade, purchaser care, lack of actual confusion evidence, applicant's intent. The Board did, however, find that applicant's ownership of a registration for a virtually identical mark for magazines weighed heavily in favor of applicant as to its word-and-design application.

Balancing the relevant DuPont factors, the Board found the first factor to be dispositive, "in that this factor of the dissimilarities of the marks simply outweighs the other factors."

Read comments and post your comment here.

TTABlogger comment: That makes three losses by Monster Energy in the last two weeks.

Text Copyright John L. Welch 2023.


At 10:19 AM, Blogger Scott Brown said...

They're just burning through legal fees at this point. Sometimes only the lawyers win.


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