MONS MONSTER ENER TER ENERGY V V. INTEGRA INTEGRATED SUPPL ED SUPPLY NET NETWORK ORK
Mons Monster Ener ter Energy’s Mar y’s Marks and T s and Trade Dress - ade Dress - Since 2002 ince 2002 Ex.1251 at MEC005396 Ex. 1328 at MEC003102 2
Jur Jury Ins Instruction No. 1 ruction No. 15: “The trademark laws balance three often-conflicting goals: (1) protecting the public from being misled about the nature and source of goods and services, so that the consumer is not confused or misled in the market; (2) protecting the rights of a business to identify itself to the public and its reputation in offering goods and services to the public; and (3) protecting the public interest in fair competition in the market. The balance of these policy objectives vary from case to case, because they may often conflict. Accordingly, each case must be decided by examining its specific facts and circumstances, which you are to judge.” 3
Mons Monster Ener ter Energy Follows the R y Follows the Rules les 4
Mons Monster Ener ter Energy Follows the R y Follows the Rules les 5
Mons Monster Ener ter Energy Follows the R y Follows the Rules les 6
ISN ISN 7
Lik Likelihood of Confusion F lihood of Confusion Fact ctor ors 1. 1. Strength of Strength of Mons Monster Ener ter Energy’s mar y’s marks and tr s and trade dress ade dress 2. ISN’s use of the mark and trade dress on same, related or complementary goods 3. Similarity of the marks and trade dress 4. Evidence of actual confusion 5. ISN’s intent in selecting the mark 6. Marketing/advertising channels overlap 7. Consumer’s degree of care 8. Product line expansion 8
1. 1. Strength of Mons trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress $1 $17 billion 7 billion in U.S. sales from 2002-2017 (Sacks Testimony, Nov. 1, 2018 Trial at 344:15-20; 384:13-18) $8 billion $8 billion in U.S. sales of green and black cans (2002-2017) (Sacks Testimony, Nov. 1, 2018 Trial at 344:21-345:3) 8 billion 8 billion green and black cans sold in the U.S. (Sacks Testimony, Nov. 1, 2018 Trial at 345:13-17) $1 $139 million 39 million in revenue from Monster premium items (Sacks Testimony, Nov. 1, 2018 Trial at 353:9-14) 9
1. 1. Strength of Mons trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress Ex. 1256 (2018 SocialBakers Report) 10
1. 1. Strength of Mons trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress Helmets Helmets Gloves Gloves Tool Boxes ool Boxes Moto Motorcycles ycles Ex. 1850 Ex. 1845 / 1815-04 Ex. 1677 Ex. 1322 Wheels Wheels RC C RC Cars Decals Decals Ex. 1503 at MEC040016 Ex. 1198 at MEC01622 Ex. 1331 at MEC004494 11
1. 1. Strength of Mons trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress Clothing Clothing Bever Be verageware geware Hats Hats Backpac Bac packs s Ex. 1365 at MEC016861 Ex. 1453 at MEC024849 / 1835 Ex. 1453 at MEC024844 Ex. 1773 Bott Bottle Opener le Openers Br Bracelet acelets s Refriger frigerator ators s Lan Lanyar ards ds Ex. 1359 at MEC016600 Ex. 1331 Ex. 1331 at MEC004472 Ex. 1331 12
1. 1. Strength of Mons trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress THE WALL THE W LL S STREET JOURN REET JOURNAL FORTUNE MA FOR MAGAZINE ZINE FORBES MA FORBES MAGAZINE ZINE A Real Advertising Vehicle, June 2003 Top 100 Fastest Growing Company, Sept. 2005 #1 Small Company, Oct. 2005 See Ex. 1249-1 See Ex. 1328 at MEC003043 See Ex. 1328 at MEC003042 FORBES MAGAZINE FORBES MA ZINE BUSINESS WEE BUSINESS WEEK FOR FORTUNE MA MAGAZINE ZINE #2 Best Small Company, Oct. 2006 #2 Company to Watch, June 2006 #2 Fastest Growing Company, Sept. 2006 See Ex. 1328 at MEC003045 See Ex. 1328 at MEC003044 See Ex. 1328 at MEC003046 13
1. 1. Strength of Mons trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress See Exs. 1321; 1322; 1334 at MEC005472, MEC005479, and MEC005496; and1343 at MEC012487 14
1. Strength of Mons 1. trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress Q. When did you first become aware of Monster Energy? A. I’ve always known that Monster Energy existed, I guess. I don’t know. I don’t know exactly when. Q. In fact, in your deposition you said you think everybody knows of Monster Energy? Darlene Lott, Darlene Lott, A. That’s right. Probably. Yeah. Owner of SE Sales Nov. 6, 2018 Trial at 1278:18-24 15
1. Strength of Mons 1. trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress Q. How did you become aware of Monster Energy? A. Motorsporting really. I'm not really an energy drinker, but in the business, you see them sponsoring all the stuff all the time. My son is in NASCAR, so there is the NASCAR car. * * * Andr Andrew Mar Markows owski, i, “But like I said, its mostly when we go to an event we see you guys posting Mechanic for and sponsoring. And the TV, you know, you guys sponsor a lot of, you Victory Automotive know, automotive related things, Motocross […] I've seen you guys Nov. 5, 2018 Trial at 981:14-982:3 everywhere to be honest.” 16
Lik Likelihood of Confusion F lihood of Confusion Fact ctor ors 1. Strength of Monster Energy’s marks and trade dress 2. 2. ISN’s use of the mar ISN’s use of the mark and tr and trade dress on same, related or ade dress on same, related or complement complementar ary goods y goods 3. Similarity of the marks and trade dress 4. Evidence of actual confusion 5. ISN’s intent in selecting the mark 6. Marketing/advertising channels overlap 7. Consumer’s degree of care 8. Product line expansion 17
2. 2. ISN’s Use of the Mar ISN’s Use of the Mark and and Trade Dress on ade Dress on Same, Same, Related or lated or Complement Complementar ary Goods y Goods ISN ISN Mons onster Ener ter Energy Ex. 1680 Ex. 1845 Ex. 177 Ex. 147 Ex. 1453 Ex. 149-A Ex. 1331 Ex. 1838 Ex. 1453 Ex. 159 18
2. 2. ISN’s Use of the Mar ISN’s Use of the Mark and and Trade Dress on ade Dress on Same, Same, Related or lated or Complement Complementar ary Goods y Goods HOT R HOT ROD RA D RACING (“NH CING (“NHRA”) STOCK CAR RA OCK CAR RACING (“N CING (“NASCAR”) SCAR”) RALL RALLY CAR RA Y CAR RACING CING Ex. 1328 at MEC003064 Ex. 1590 at MEC050749 Ex. 1233-13 at MEC009474 MO MOTOCR CROSS RA OSS RACING CING OFF-ROAD RA OFF RACING CING SUPER SUPERCROSS RA SS RACING CING Ex. 1198 at MEC001635 Ex. 1581 at MEC049940 Ex. 1680 at MEC064687 19
2. 2. ISN’s Use of the Mar ISN’s Use of the Mark and and Trade Dress on ade Dress on Same, Same, Related or lated or Complement Complementar ary Goods y Goods Ex. 1334 at MEC005440 Ex. 1174 20
Lik Likelihood of Confusion F lihood of Confusion Fact ctor ors 1. Strength of Monster Energy’s marks and trade dress 2. ISN’s use of the mark and trade dress on same, related or complementary goods 3. 3. Similar Similarity of the mar ty of the marks and tr s and trade dress ade dress 4. Evidence of actual confusion 5. ISN’s intent in selecting the mark 6. Marketing/advertising channels overlap 7. Consumer’s degree of care 8. Product line expansion 21
3. 3. Similarity of the Mar Similarity of the Marks and T s and Trade Dress ade Dress See Exs. 127 at ISN001601; 147 / 178; 159 / 159-A; 176 at MEC018564; 177 at MEC018492; 177 at MEC018497; 329; 293; 149-A; 1207 at MEC024108; 1251 at MEC005396; 1365 at MEC016861; 22 1453 at MEC024849 / 1835; 1581 at MEC049940; 1845 / 1815-04; 1581 at MEC049940; 1198 at MEC01622; and 1850
3. 3. Similarity of the Mar Similarity of the Marks and T s and Trade Dress ade Dress Ex. 407 Ex. 1837 at MEC066293 Ex. 1837 at MEC066305 Ex. 1837 at MEC066275 Ex. 1837 at MEC066276 Ex. 407 23
Lik Likelihood of Confusion F lihood of Confusion Fact ctor ors 1. Strength of Monster Energy’s marks and trade dress 2. ISN’s use of the mark and trade dress on same, related or complementary goods 3. Similarity of the marks and trade dress 4. 4. Evidence of actual confusion Evidence of actual confusion 5. ISN’s intent in selecting the mark 6. Marketing/advertising channels overlap 7. Consumer’s degree of care 8. Product line expansion 24
4. 4. Evidence of Evidence of Actual Confusion Actual Confusion Q. And when you first saw the toolbox and the screwdriver, did you believe the company that had put them out had a business connection or affiliation with Monster Energy Company? A. I assumed there was some kind of connection. I mean, they have -- you know, the green was the big thing. The green and the word "Monster." Chris Chris Nalven, Nalven, Monster is green, you know. Mechanic for Levy’s Imperial Tire Nov. 5, 2018 Trial at 964:19-25 25
4. 4. Evidence of Evidence of Actual Confusion Actual Confusion Q. When you first saw Monster tools, did you think that the Monster tools may have had any type of business connection or affiliation with Monster Energy? A. I absolutely did. Mike Beasley Mike Beasley, Ethridge Auto Center Nov. 5, 2018 Trial at 974:24-975:2 26
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