Monster Called ‘Bully’ for Fighting Reclaimed Taunt, Toy Marks

Monster Energy Co.'s vigorous defense of its trademarks is causing some to label it a bully, as its recent targets include a woman who brands her “Titty Monster” merchandise with a reclaimed taunt and another who sells “My Moody Monster” stuffed toys for kids dealing with mental illness.

Monster has moved to block hundreds of marks at the Trademark Trial and Appeal Board in 2022 alone. Many have apparent commonalities with its branding, but attorneys say some stray far from Monsters’ marks’ look and products. A Dallas college sports logo for the “Brookhaven Bears,” for example, seems to have drawn Monster’s ire merely with claw marks.

Many brands try to keep their marks as distinct as possible by policing marks with only marginal chances of causing confusion, but few are as aggressive as Monster. For small businesses on the other side, prohibitive litigation costs often give Monster the ability to unilaterally force rebrands through an opposition proceeding at the TTAB—or even just the fear of one.

The one hope is often finding an attorney willing to take a case for free, as Brooke Comegys did for her “Titty Monster” branding. In school, bullies tormented Comegys with the nickname after she developed early, according to her attorney Dyan Finguerra-DuCharme of Pryor Cashman LLP. As an adult, she reclaimed the epitaph as a brand, and has had success selling hats and other items.

A trademark examiner found no conflicts in the US trademark registry with her proposed registration, but Monster opposed it in June.

“She was bullied as a kid, creates this mark to reclaim the bullying of her, and now she gets bullied by a corporation,” said Finguerra-Ducharme. “There’s just no risk for consumer confusion.”

Meanwhile, Jennifer Ginty is fighting Monster’s November opposition to her “My Moody Monster” word and design marks. Kids struggling with depression, anxiety, or other mental health issues can, when stressed, rip the limbs off Ginty’s plush toys, to which they’re attached with strong velcro. She also sells a backpack, workbooks, and other accessories.

Her attorney, Diane M. Chubb, once aggressively protected the X-Files name and mark for 20th Century Fox. But despite her experience on the other side, she said Monster has gone too far. Their issue with Ginty should have been quickly resolved with a simple coexistence agreement that kept Ginty out of the energy drink market, Chubb said. But Monster’s initial proposal would force Ginty to excise the word “monster”—which Chubb said was unacceptable.

“I was like ’no you’ve got to be kidding, you don’t have that much pull, you don’t even have any conflicting registration,” Chubb said. Monster later asked Ginty to excise Monster only for stickers, and asked Ginty not use green, white, and black—demands Chubb said Ginty would also fight.

‘No Feasible Way’

Trademark rights stem from use rather than registration. But registration comes with several legal benefits, including advantages during infringement litigation. In the registration process, a trademark examiner must find the proposed mark doesn’t conflict with any registered marks. Then, it’s “published for opposition” to allow others a chance to object.

That’s where Monster often steps in if an application includes “Monster,” “Beast,” a solitary “M,” or claw marks. That triggers a TTAB trial to determine whether the new mark would likely cause consumer confusion by indicating Monster’s involvement—if the applicant doesn’t abandon the application first. Trials hinge on several factors, including similarity and strength of the marks, relatedness of the products they cover, and whether they’re sold in the same places.

Chubb noted Monster has registered its green claw “M” logo to cover stickers and backpacks—areas Ginty’s mark would cover. But protection would presumably narrow to blocking only very similar marks in areas where more third-party Monster-inclusive marks already exist.

Critics say Monster’s oppositions often ignore general trademark principles that would make clear that trademarks like “Titty Monster” wouldn’t cause confusion. Finguerra-Ducharme wondered “how they could think they have a stranglehold on the word ‘monster’” when many other companies have long used it in various trademarks outside of energy drinks—including clothes. She and colleagues helping her also noted the particular distinctiveness of this opposition.

“In trademark law, the first word is considered more memorable. Especially this first word,” said William J. Thomashower of Pryor Cashman. “‘Monster’ is a regular everyday word. You only get to protect that word for that thing you do.”

“There’s no feasible way that someone could confuse the two.”

‘Who’s Driving It?’

Evaluating likelihood of confusion is a largely subjective analysis of several factors. That makes bright lines to constrain alleged “bullies” difficult to draw.

“Technically, everything they’re doing is legal and ethical,” Chubb said of Monster.

Chubb raised the relationship between client and attorney—the expert in the room on legal boundaries—in policing trademarks.

“It depends on the client, on the attorney. Attorneys generally drive how aggressive a client should be,” Chubb said. “I often wonder who’s driving some of it.”

Monster did not respond to requests for comment. But during a 2020 TTAB deposition in a case involving an “Ice Monster” mark for a flavored ice establishment, Monster CEO Rodney Sacks said, “We’re trying to obviously maintain the most control we can over our brand and over our image.”

“Everything that you do or that someone else does that utilizes ‘Monster’ could be dilutive in some way,” he said. In a 2014 deposition in a case over MonsterFishKeepers, he also said Monster evaluates marks on a “case-by-case basis” based on how a mark is used. He said “we try and actually be reasonably measured” and that “don’t oppose everything simply for the sake of opposing.”

Chubb, however, characterized Monster’s tactics as “throw it all against a wall and see what sticks.” She said it’s clear Monster often re-uses material from old cases in TTAB filings and negotiations: Monster’s proposal for rules regarding “My Moody Monster” included a ban on using “Beast,” which Ginty “wasn’t even close to using.”

“That’s generally how these trademark bullies work,” Chubb said. “All they have to do is change the caption, hit save, and send it off,” she said. “They don’t even have to think about it.”

Knobbe Martens LLP has been the exclusive firm filing Monster’s TTAB oppositions since at least 2020. The firm didn’t respond to a request for comment.

31 Flavors of Oppositions

Monster has challenged large companies, such as the variously shaped “M” logos of Italian fashion company Moncler SPA and Walmart’s Member’s Mark label. But most oppositions target more obscure bids for brands.

This year, Monster oppositions have targeted applications to cover “Poke Monsta” restaurants, “Trap’d Beast” action figures, and “Monstik” tobacco products. Eating establishments also find their flavors in the crosshairs, such as “Monster Chowder” soup, “Cookie Monster” and “Mint Green Monster” milkshakes, and “Scotch Ness Monster” cocktails.

Trademark attorney Rexford Brabson of T-Rex Law PC, currently representing an applicant trying to register “Beast Hack” to cover a baseball swing trainer, said in an email he’s faced Monster in several opposition proceedings. He called Monster’s counsel “reasonable people” and said the company “does appear to legitimately participate in settlement negotiations.”

But he also said he has to caution applicants against filings using the words “monster” or “beast” even for “something as innocuous and unrelated as legal services or fertilizer,” as an opposition from Monster would be “almost certain.”

Marvin Banks said without free counsel from a college friend, he would have had to concede to Monster’s demands on his podcast logo. The mark featured a deep green block “M” with black and red trim above podcast title “The Man Listen Show,” and would cover “podcasts in the field of African-American related topics of interest.” He said “there’s no conceivable way” you could confuse the logos, and called Monster’s tactics “corporate intimidation.”

“Thankfully we have someone invested in it, and who is also a fighter,” he said of attorney Aryka Moore of The Williams Bloc LLC. “I watch UFC, I see Monster on the mat they fight on, they’re sponsoring all these events. And we’re a podcast with 258 followers, not even trying to sell energy drinks. So what’s the point?”