How similar is too similar? Monster Energy files notice of opposition over company’s logo
At age 16, Mason McGuire discovered arthritis in his lower back.
The mountain biker, baseball player and motorcycle rider wanted to stay active without aggravating his newfound aches.
One year older, the Forest Charter School graduate decided to start his own business to mitigate his problems, and hopefully ease those of others.
While taking a business course at Sierra College, the words of one individual continued to ring in his head: “My teacher kept saying, ‘You’ll never learn it until you do it,’” he said.
So he did.
But on July 30, McGuire received a letter that stunted his company’s development.
McGuire, today a 21-year-old entrepreneur, had to address the claim this past Sunday.
McGuire wanted to create an energy supplement unlike those on the market. Red Bull and Monster Energy have high sugar content, he said, which “cause a lot of inflammation” and are bad for arthritis.
“Our bodies just can’t actually digest it,” he said.
After developing a formula, finding the right manufacturer in Florida and getting the product licensed to him, McGuire established his company, Monarch Energy, meant to sell caffeine-infused tablets designed to energize athletes without offering a severe crash. (McGuire said he’s yet to widely produce the tablet because he can’t afford the $20,000 cost.)
Despite not yet penetrating the market, the entrepreneur is proud of how far he’s come. He’s distributed his product to a few people as a test run, and has received positive feedback.
Former firefighter and current emergency services worker Jason Hoffler said he tried the tablet, and had a positive experience, especially in comparison with other products.
“With an energy drink you get a hard crash,” he said. “I felt like I had no crash with (McGuire’s) product.”
Hoffler said the product could be useful during natural disasters, when people wake up in an unfamiliar location and want caffeine. Something like coffee, he said, is difficult to transport. Caffeine tablets solve that problem.
THE LOGO IN QUESTION
Monster Energy’s contention is with Monarch Energy’s logo. The logo is a block “M” within a black circle bounded by the aquila (Latin for Eagle) symbol, popular during the ancient Roman era.
Despite maintaining distinctions, McGuire said he was a bit nervous Monster Energy would file a claim against his company, because of Monster’s history of filing lawsuits, so he tried doing his due diligence before choosing the logo.
“I made sure to go over the rules many times that wouldn’t infringe with Monster,” he said. But, he later said he suspected the large energy company might intervene legally anyway.
McGuire acknowledges that there is no trademark police per se, meaning that Monster Energy must be aware of smaller businesses trying to exploit its brand. But, he added, the company can drop the court filing once it realizes an entrepreneur is not acting in bad faith.
“I don’t care too much that they’re going after me,” he said. But McGuire — who has yet to hire an attorney — said he could lose his business with the possible legal fees needed to combat Monster Energy. He also said he can’t afford a new trademark to change his logo, for which he’s already paid.
More broadly, the entrepreneur’s upset because he is not the only one to feel bullied by the company.
MONSTER IN THE NEWS
Monster Energy has been in hundreds of legal battles for trademark disputes, according to the U.S. Patent and Trademark Office.
Trademarkia, an internet platform for trademark disputes, ranks Monster the “biggest bully” of 2018 for pushing smaller companies out of the free market with its legal filings. A legal consumer protection firm EnergyDrinksLawsuit.com declared Monster the biggest bully of 2016.
One individual gathered over 4,000 signatures on a Change.org petition against Monster for filing a claim against a distillery in Virginia for having too similar of a logo. The case was eventually dismissed.
In a different court case, Monster Energy was accused by a California judge of trying to push a soft drink company out of the market, according to the legal news publication Law360.
“I don’t know why we’re here, other than you’re trying to crush this root beer company out of business,” said U.S. District Court Judge André Birotte, Jr., with the Central District of California.
Monster Energy did not respond to multiple requests for comment.
McGuire said he’s been getting advice from lawyers like Craig Simmermon, an intellectual property attorney with several offices in northern California.
Simmermon said patent and trademark holders must protect themselves, but that the Monarch Energy and Monster Energy logos are not confusingly similar.
“Many times, they file the opposition because they just count on the person giving up,” said Simmermon. “(Because of such costs) it’s not looking good for Mason.”
Texas A&M University School of Law Professor Glynn Lunney, Jr. said larger companies often push smaller ones out of the free market by filing opposition, sometimes costing between $30,000 and $40,000 to defend.
“The process can be expensive, it can be distracting from what you’re doing in your startup business,” he said. “There are certainly small businesses that have failed because of a trademark dispute.”
But, he added that Monster “is not the first to be engaging in this type of work in a long shot.”
The legal climate changed around the beginning of the 20th century, said Lunney. Before that, the court standard for filing a trademark dispute relied on double identity, meaning the mark or logo must be the same as well as the good or product. But a 1915 Aunt Jemima Mills Company case threw all of that into question, said Lunney. The pancake mix company was filing a suit for trademark infringement against Rigney & Company, which sold a different product. Lunney said the case allowed for more ambiguous legal protection, thereby favoring larger companies in their pursuit to shield themselves from the exploitation of smaller companies.
“There’s a lot of leeway in the confusion standard,” said Lunney. Legal power, he explained, has shifted in favor of larger companies with more resources to push smaller players out of the market or away from their first choice of logo. Monster Energy, which “tends to go after smaller players,” is such a company, he said. But Lunney said there is still reason for larger companies to be wary because bad faith exists “on both sides of the coin.” He referenced the case of a small business parodying The North Face, essentially stealing its slogan and design.
Nonetheless, Lunney would rather see things shift back to the double-identity standard.
“I’d rather have an imperfect rule that everyone has to play by,” he said. Today, small businesses “can’t afford to play at all.”
The person who helped McGuire design his company’s logo said he doesn’t necessarily agree with the professor.
Cru Dorsey, who has worked in brand design for over a decade, said Monster is acting procedurally and that its actions are “not out of the norm.” Although Dorsey acknowledged the two logos are “so truly, very different,” he believes McGuire should change his logo and hopes that by doing so the entrepreneur will be successful.
Hoffler, who helped test drive McGuire’s product, thought differently.
“I think it’s kind of BS on their part,” he said. “They’re slapping down the little guy.”
As for the future, McGuire isn’t sure what will happen next. He doesn’t know how far into litigation he — or Monster — will proceed. He doesn’t yet know if he will change his logo. He’s sent applications to university law schools to gain pro bono representation, but he said he’s yet to hear back.
“It’s just a work in progress,” he said.
To contact Staff Writer Sam Corey email firstname.lastname@example.org or call 530-477-4219.
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