More On That US Trademark Law Facing Vermonster

You know, it’s fun to learn new things. Today, for example, I learned how to use the search tool at the United States Patent and Trademark Office. A great example of open government, you can even see the emails on the Office’s file listed as Notation to File – thrill to the bureaucratic reality, baby. Why’d I do it? Well, because Hansen Beverage Company, the makers of a jittery soda pop called Monster, has issued a press release about their reasons for objecting to the application filed by Rock Art Brewery to trademark their beer called The Vermonster. In part, they state:

In order to protect Hansen’s valuable Monster Energy® trademarks, Hansen is legally obliged to, and routinely sends, “cease and desist” letters to, and where appropriate, pursues litigation against, entities and persons who use or attempt to register similar trademarks for products that are similar or related to Monster Energy® products. A “cease and desist” letter was sent to Rock Art Brewery on September 4, 2009… Hansen has not, and does not, target or single out one company over any other, nor distinguish between big or small companies or individuals when enforcing our trademarks.

To be fair to Hansen, that is true. For example, when one looks at the registration by Coca-cola of a drink called “Monster Refreshment” you can see that Hansen does object to others and is not afraid to take on companies far bigger than they are. Hansen actually seems to be involved with a whopping ninety-nine trial or appeal files of one sort or another at the moment. So, they are not picking on Rock Art – though what I see are other firms using “monster” somehow and not just a word, as with Vermonster, containing “monster” or some a step further. What would the do if faced with a “-onster” word like “Sue-me-nonster” beer? I have no idea.

Sometimes trademark applications just go away as when the Brooklyn Brewery abandoned its trademark application for its Monster Ale barley wine in 2005. No idea why they did that. They seem to have all their other brands in he system including the as yet unmade and somewhat mysterious Local 3. Sometimes they are resolved as when Hansen bought the rights to a beer brand called Flathead Lake Monster in 2006… though it doesn’t say for how much. Actually, Flathead Lake Monster Ale seems to have gone away about the same time. There was a Flathead Lake Brewery in 2008 but that seems to have gone, too.

But one trademark didn’t seem to get protected by Hansen. The one for Monster Malt Liquor. It was deemed abandoned by the Patent and Trademark Office who sent Hansen’s lawyer this Notice of Abandonment on 20 July 2009. See, Hansen failed to file a document called a “Statement of Use” even though they were given three extensions to make that filing. Because, presumable, they did “use” the name by making a beer called “Monster.” Or, I think, make any beer at all for that matter. I guess in that respect beer and jittery soda pop are very different things.

Will Hansen’s abandonment of their one intended beer trademark make a difference? Will it matter to their argument that Vermonster causes confusion when it is pointed out that they could not put even a malt liquor on store shelves? I have no idea – but you sorta think it should, right? Interestingly, another factor that might affect the outcome is that soda and beer are in the same trademark goods and services category called “light beverages” which is separate from both wine (listed under “alcoholic beverages”) and coffee (listed under “staples”). A quirk? Not important? Who knows?

Meanwhile, you know things are getting more jittery than usual at Hansen HQ as Monster Energy may have stopped tweeting. the push back and the boycott grow. Because the consumer doesn’t need to wait for a ruling from the Patent and Trademark Office, right?

One thought on “More On That US Trademark Law Facing Vermonster”

  1. [Original comments…]

    Paul – October 16, 2009 12:51 AM
    What is really interesting is how closely this resembles monster cable’s attempts to silence competitors – is the common thread the ‘monster’ brand?

    Good Burp – October 16, 2009 11:13 PM
    I feel for them. I know from experience, it isn’t easy, cheap, or any fun fighting in court. I should know. I was sued by a famous sports figure for trademark infringement.

    In the early days of the interent, I registered a domain name. A while later, them fedx delivered a nice notice in the mail.

    I fought it for a time. But eventually it was just too overwhelming. I had to give it up. I fought the good fight.

    I wish them luck. But he with the most money (and willing to give it to their attorney) will win.

    Alan – October 18, 2009 9:28 PM
    A very good take on the situation from Peter Egelston of the Portsmouth Brewery and Smuttynose Brewing. h/t Andy.

    Ben – January 21, 2010 3:32 AM
    To put some of this in perspective, the number of trademarks that are filed makes it almost impossible to individually check each and determine whether to send a nasty letter. Most companies send automated letters. And to send automated letters, they put in general search terms etc. The same happens with domain names. Just try registering any domain name with “ebay” in it.

    Just because you get a letter doesn’t always mean that they singled you out – it just means you turned up on their search.

    Alan – January 21, 2010 5:51 AM
    Well, seeing as they didn’t send an automated letter in this case but had a specialist intellectual property law firm handling their affairs I am not sure what perspective you are talking about.

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