Why Monster’s Trademark Claims Against Vermonster Stink

Controversy is brewing in the craft beer world over Monster energy drink’s accusation that Rock Art Brewery’s Vermonster beer is infringing on Monster’s trademark.

Put simply, the Hansen Beverage Company — owners of Monster energy drinks – claims it has the exclusive right to use the “Monster” name in the beverage market.  In its letter to Rock Art, Hansen claims Rock Art’s use of the “Vermonster” mark threatens to do two things: (1) cause a likelihood of confusion; and (2) dilute Hansen’s “Monster” mark.

What does Hansen mean, you ask.  Well, here’s a short explanation of both claims.

Likelihood of Confusion: Hansen asserts that Monster’s consumers, or potential future consumers, will be confused by the presence of another beverage with a similar name.  Hansen’s theory rests on the premise that the “Vermonster” mark sounds and/or looks so similar to the “Monster” mark that people would confuse the “Vermonster” product as one owned by, or affiliated with, Hansen (i.e., you can’t name a product VerCoca-Cola unless you’re the Coca-Cola Corporation).

Monster doesn’t make alcoholic products.  However, it’s not outside of the realm of possibility that Monster will eventually enter the alcoholic drink market (like Rockstar did, before discontinuing its alcoholic energy drink in 2007).  Therefore, Hansen probably fears Monster customers will see a product with a mark approximating “Monster” and think that Monster has come out with a new alcoholic beverage.

Hansen’s argument, however, is weak for several reasons. First, why would anyone believe that a product named “VERmonster” — a mark alluding to the state of Vermont – is affiliated with Monster energy drinks?  Second, the term “monster” isn’t exactly distinct to Hansen’s energy drink. In fact, we correlate the term “monster” with so many things (e.g., job-searching websites, creatures in Loch Ness, etc.).  Third, while some energy drinks have moved into the alcoholic beverage market, none of them have yet entered the beer market.  For these reasons, it’s doubtful that Hansen has a viable argument that Rock Art’s “Vermonster” causes a “likelihood of confusion.”

Furthermore, the Brooklyn Brewing Company has made a barley wine product called “Monster Ale” since the 1990s, long before Hansen began marketing and selling Monster energy drinks.  If Brooklyn Brewery is able to establish that it owns the trademark over the “Monster” mark in the beer market, Hansen would have no right to challenge Rock Art’s use of the “Vermonster” mark (but Brooklyn Brewery may!).

Dilution: Hansen’s argument that the “Vermonster” mark has caused, or will cause, dilution of Hansen’s “Monster” mark is even weaker.  The idea behind Hansen’s dilution claim is that the “Monster” mark would lose some of its “uniqueness,” and therefore Monster energy drinks would suffer a loss in sales or profits.  The trouble with a dilution claim – for Rock Art at least – is that it applies to non-competing products (e.g., Coca-Cola can challenge an automobile maker for calling its car “Coca-Cola”).

I find it hard to believe that the term “monster” is somehow unique to energy drinks.  Unlike marks such as “Coca-Cola” or “Pepsi” or “IBM”, which are unique regardless of the product, the term “monster” is found in so many markets (again, job-searching websites, creatures in Loch Ness . . . not to mention Brooklyn Brewery’s barley wine product!).  The term “monster” may be unique in the energy drink market, but outside of that market, it’s ubiquitous.