48 replies to this topic

[cavman]

It's admittedly late but seems to me Monster Energy made the first move. Would you be confused over Vermonster beer and Monster energy?

[Patrick C.]

I wonder if they would have had a problem with "Vermontster"... Pronounced about the same, but obviously a totally different name

[zymot]

I am not a lawyer (yet), but you are pretty spot on in that a trademark is not self-enforcing and that lawyers will tend to cover their asses. I still think, however, that before a trademark becomes generalized it has to be over-used with respect to a certain good or service - not with completely unrelated products. (Wikipedia has a pretty good entry on the subject.) Otherwise it seems like you are removing words from the public domain.

As I understand it, a single instance of negleting to enforce your tradmark can be all that is needed to loose it.I am sure there are all kinds of twists and clauses, but the principle of defending it at every instance of infringement is a most basic requirement.Hansen's lawyers have lawyers. I am speculating here, but if Hansen wanted to be nice guys, they could allow the vermont brewery to use the trademark for a nominal fee? Like charge them $100.00/year.

[Patrick C.]

Think the folks that thought up these names have an opinion on the matter? OK, they're mostly dead by now, and I doubt Bayer wants to market Heroin any more, but you get the point. I think it's funny that an attorney is questioning the enforcement of a trademark.from wikipedia-Aspirin – Still a Bayer trademark name for acetylsalicylic acid in about 80 countries, including Canada and many countries in Europe, but declared generic in the U.S.[1] Catseye – Originally a trademark for a specific type of retroreflective road safety installation, now a generic term.[2] Cellophane[3] – Originally a trademark of DuPont.[4] Dry ice[5] – Trademarked by the Dry Ice Corporation of America in 1925.[6] Escalator – Originally a trademark of Otis Elevator Company.[7] Freeware – Trademarked in the early 1980s by Andrew Fluegelman, but the trademark status was abandoned following Fluegelman's disappearance and presumed death.[8][9][10] Heroin[11] – Trademarked by Friedrich Bayer & Co in 1898.[12] Hoover – This is a trademarked product from the Hoover Company, North Canton, Ohio. Its popularity, mainly in the United Kingdom, led to vacuum cleaners being referred to as Hoovers.[13][14] Kerosene[15] – First used around 1852. Lanolin – Trademarked as the term for a preparation of sheep fat and water.[16] Laundromat – coin laundry shop.[17] Linoleum – Floor covering,[18] originally coined by Frederick Walton in 1864, and ruled as generic following a lawsuit for trademark infringement in 1878; probably the first product name to become a generic term.[19] Mimeograph[20] – Originally trademarked by Albert Dick. Pilates exercise system – United States trademark formally canceled by court in 2000.[21] Thermos – Originally a Thermos GmbH[22] trademark name for a vacuum flask; declared generic in the U.S. in 1963.[23] Touch-tone – Dual tone multi-frequency telephone signaling; AT&T states "formerly a trademark of AT&T".[24] Trampoline – Originally trademarked by George Nissen[25][26] for the generic "rebound tumbler" Videotape – Originally trademarked by Ampex Corporation.[27], an early manufacturer of audio and video tape recorders. Webster's Dictionary – The publishers with the strongest link to the original are Merriam-Webster, but they have a trademark only on "Merriam-Webster", and other dictionaries are legally published as "Webster's Dictionary".[28] Yo-Yo – Still a Papa's Toy Co. Ltd. trademark name for a spinning toy in Canada, but declared generic in the U.S. in 1965.[29] Zipper – Originally a trademark of B.F. Goodrich.[30]

[consumptionjunction]

Aspirin – Still a Bayer trademark name for acetylsalicylic acid in about 80 countries, including Canada and many countries in Europe, but declared generic in the U.S.[1] Catseye – Originally a trademark for a specific type of retroreflective road safety installation, now a generic term.[2] Cellophane[3] – Originally a trademark of DuPont.[4] Dry ice[5] – Trademarked by the Dry Ice Corporation of America in 1925.[6] Escalator – Originally a trademark of Otis Elevator Company.[7] Freeware – Trademarked in the early 1980s by Andrew Fluegelman, but the trademark status was abandoned following Fluegelman's disappearance and presumed death.[8][9][10] Heroin[11] – Trademarked by Friedrich Bayer & Co in 1898.[12] Hoover – This is a trademarked product from the Hoover Company, North Canton, Ohio. Its popularity, mainly in the United Kingdom, led to vacuum cleaners being referred to as Hoovers.[13][14] Kerosene[15] – First used around 1852. Lanolin – Trademarked as the term for a preparation of sheep fat and water.[16] Laundromat – coin laundry shop.[17] Linoleum – Floor covering,[18] originally coined by Frederick Walton in 1864, and ruled as generic following a lawsuit for trademark infringement in 1878; probably the first product name to become a generic term.[19] Mimeograph[20] – Originally trademarked by Albert Dick. Pilates exercise system – United States trademark formally canceled by court in 2000.[21] Thermos – Originally a Thermos GmbH[22] trademark name for a vacuum flask; declared generic in the U.S. in 1963.[23] Touch-tone – Dual tone multi-frequency telephone signaling; AT&T states "formerly a trademark of AT&T".[24] Trampoline – Originally trademarked by George Nissen[25][26] for the generic "rebound tumbler" Videotape – Originally trademarked by Ampex Corporation.[27], an early manufacturer of audio and video tape recorders. Webster's Dictionary – The publishers with the strongest link to the original are Merriam-Webster, but they have a trademark only on "Merriam-Webster", and other dictionaries are legally published as "Webster's Dictionary".[28] Yo-Yo – Still a Papa's Toy Co. Ltd. trademark name for a spinning toy in Canada, but declared generic in the U.S. in 1965.[29] Zipper – Originally a trademark of B.F. Goodrich.[30]

I'm pretty certain that most, if not all of those became generic due to the public's use and adoption of the respective trademarks, not by another corporation use of the same term. Loss of a trademark would be unavoidable at that point as you can't sue the public at large for making your trademark with what's synonymous with what's being sold.

[BarelyBrews]

I wonder if they would have had a problem with "Vermontster"... Pronounced about the same, but obviously a totally different name

I could see where Monster lawyers could make a case accusing them of willingful infringement if they change the name suddenly , especially close to the orginal name . I hope they leave the name the same, and i wish i could buy a case of this beer.

[stellarbrew]

I'm certainly no lawyer, but it seems to me that this is a case of a company trying to enforce their trademark way beyond it's logical bounds. If someone marketed a new energy drink with "Monster" in it's name, then it would make sense for them to defend that infringement. But any reasonable person should be able to differntiate between an energy drink named "Monster" and a beer named "Vermonster", especially since the labels look nothing even remotely alike. I think they are just bullying this small brewery becasue they thought they might one day like to extend their "Monster" name to a beer. They just figured they would use their corporate might and power, and the threat of big legal expenses to stomp on a small business.

[Deerslyr]

I'm certainly no lawyer, but it seems to me that this is a case of a company trying to enforce their trademark way beyond it's logical bounds. If someone marketed a new energy drink with "Monster" in it's name, then it would make sense for them to defend that infringement. But any reasonable person should be able to differntiate between an energy drink named "Monster" and a beer named "Vermonster", especially since the labels look nothing even remotely alike. I think they are just bullying this small brewery becasue they thought they might one day like to extend their "Monster" name to a beer. They just figured they would use their corporate might and power, and the threat of big legal expenses to stomp on a small business.

I am not a patent or trademark attorney. Had no desire to be one when I was in law school so I didn't go down that route. (Requires more specialty schooling than I wouldn't be willing to pay for anyways) But if protecting the "trademark" of a "common word" is what they are trying to do, then I want to know if the other FIFTY FIVE beers that are produced with the word "monster" or a derivation thereof, have ALSO received Cease & Desist letters! I want to know if Ben & Jerry's has received theirs! I want to know if The Smashing Pumpkins received a Cease & Desist for covering "Monster Mash" last year. I do not agree with trademarking a "common word". Without knowing all the facts, there COULD be some sloppy enforcement going on. They have made their statement and preserved their rights. Now it's time for them to call off the Doberman's and let this guy brew his beer.

[consumptionjunction]

Exactly. This is why I stand by my cynical view of the attorney's actions here. Their stance seems neither supported by common sense nor the language and purpose of trademark laws. However, I say this before reading the case law interpreting the statute governing trademarks. It may be that defending a trademark requires a company to be this ruthless, but I really doubt it.I think they moved in on Rock Art Brewery in particular because they actually attempted to trademark their beer's name.

[3rd party JKor]

Think the folks that thought up these names have an opinion on the matter? OK, they're mostly dead by now, and I doubt Bayer wants to market Heroin any more, but you get the point. I think it's funny that an attorney is questioning the enforcement of a trademark.from wikipedia-Aspirin – Still a Bayer trademark name for acetylsalicylic acid in about 80 countries, including Canada and many countries in Europe, but declared generic in the U.S.[1] Catseye – Originally a trademark for a specific type of retroreflective road safety installation, now a generic term.[2] Cellophane[3] – Originally a trademark of DuPont.[4] Dry ice[5] – Trademarked by the Dry Ice Corporation of America in 1925.[6] Escalator – Originally a trademark of Otis Elevator Company.[7] Freeware – Trademarked in the early 1980s by Andrew Fluegelman, but the trademark status was abandoned following Fluegelman's disappearance and presumed death.[8][9][10] Heroin[11] – Trademarked by Friedrich Bayer & Co in 1898.[12] Hoover – This is a trademarked product from the Hoover Company, North Canton, Ohio. Its popularity, mainly in the United Kingdom, led to vacuum cleaners being referred to as Hoovers.[13][14] Kerosene[15] – First used around 1852. Lanolin – Trademarked as the term for a preparation of sheep fat and water.[16] Laundromat – coin laundry shop.[17] Linoleum – Floor covering,[18] originally coined by Frederick Walton in 1864, and ruled as generic following a lawsuit for trademark infringement in 1878; probably the first product name to become a generic term.[19] Mimeograph[20] – Originally trademarked by Albert Dick. Pilates exercise system – United States trademark formally canceled by court in 2000.[21] Thermos – Originally a Thermos GmbH[22] trademark name for a vacuum flask; declared generic in the U.S. in 1963.[23] Touch-tone – Dual tone multi-frequency telephone signaling; AT&T states "formerly a trademark of AT&T".[24] Trampoline – Originally trademarked by George Nissen[25][26] for the generic "rebound tumbler" Videotape – Originally trademarked by Ampex Corporation.[27], an early manufacturer of audio and video tape recorders. Webster's Dictionary – The publishers with the strongest link to the original are Merriam-Webster, but they have a trademark only on "Merriam-Webster", and other dictionaries are legally published as "Webster's Dictionary".[28] Yo-Yo – Still a Papa's Toy Co. Ltd. trademark name for a spinning toy in Canada, but declared generic in the U.S. in 1965.[29] Zipper – Originally a trademark of B.F. Goodrich.[30]

None of those are relevant to this discussion. All of those terms were coined to describe a specific product. 'Monster', obviously, was not.

[Deerslyr]

None of those are relevant to this discussion. All of those terms were coined to describe a specific product. 'Monster', obviously, was not.

I gave you my +1 for the day for this. Truer words have never been spoken. it is ludicrous for a Trademark to be given to a word straight out of Websters/Merriams/Oxford/etc. etc. etc. I suppose THEY all owe Hansen's royalties or something for use of the word "Monster" in their dictionaries. {starts furiously preparing a trademark application for the name "Mark".}I wonder if Hansen's went after the boy-band Hanson? Although admittedly, they would be justified in any argument that the boy-band degraded the Hansen name.

[consumptionjunction]

A great post on the legal timeline between Monster and Rock Art Brewery:

7/11/07 – Hansen Beverage Co. files two trademark applications for “Monster Energy” under the categories: “Non-alcoholic beverages, namely, energy drinks, excluding perishable beverage products that contain fruit juice or soy.” and “Nutritional Supplements.”6/23/09 – Rock Art Brewery files a trademark application for “The Vermonster” under the category of “beer.” The brewery began selling the beer in 2007.9/14/09 – A cease and desist letter arrives to Rock Art Owner, Matt Nadeau asking that Nadeau end its use of the mark and pay Hansen all legal fees in pursuing the matter. Diane Reed of Knobbe Martens Olson and Bear LLP, who represents Hansen Beverage Co. in legal matters, is handling the case. [FULL TEXT PDF courtesy of Green Mountain Daily]Late Sept./Early Oct. – Nadeau offers “to stay out of energy drinks with The Vermonster, if they leave him alone in beer.” According to Nadeau, “Their lawyer stated that they are not concerned with energy drinks, that Monster wants to now get into beer,” and will likely continue to pursue action against Rock Art.10/1 – The Stowe Reporter prints the first article on the subject [must register for access] with comments from Reed. Jesse Roman also gets comments from, Doug Riley, Trade Attorney:“It usually spins out in the end in favor of the Vermont company, because it ends up being very bad for public relations” for the corporation, Riley said. “What I’ve seen happen — where the likable company is the good guys, with a homegrown local Vermont product, and on the other side is this big, faceless, conglomerate corporation — is usually the corporation will back off. It’s bad for publicity, and the Vermont company is really not a threat.”“Lawyers tell them they must do this; if they don’t establish their rights to a trademark, it could be lost,” he said.10/7 – The story picks up traction with more appearances in both Vermont and national newspapers. A major Vermont tv station, WCAX, also features it on its evening newscast [video here]. Dozens of national blogs also pick it up over the next week.10/8 – Lukas Payette and Jeff Baker start a Facebook group in support of Rock Art Brewery against Monster Energy drinks. Several local businesses have removed Monster Energy Drink or Hansen Beverage Co. products altogether.10/9 – In response to a now-deleted comment from Baker on the Official Monster Energy Drink Facebook Fan Page, a company representative replies, “Nobody cares, get a life.” To this date, it is one of the only, if not the only, public response on the matter from someone inside Hansen/Monster.10/14 – Nadeau releases a 6-minute video on Youtube describing the history of Rock Art Brewery and his thoughts on the situation with Hansen Beverage Co. The video goes viral and is now easily the highest-rated brewery video ever on YouTube with over 320 votes and a 5-star average.10/15 – Payette and Baker’s Facebook group now stands at 7,000 strong. Over 3,000 tweets have come through on the subject in the last 30 hours with memes such as #monsterboycott (nearly 2,000 tweets first started by @martinbowling).

[stellarbrew]

It's interesting how Hansen has removed all reference to their Monster energy drinks from their website. I expect that I'm not the only one that sent them a message through their contact page to express my disgust.

[Jimmy James]

Does anybody actually drink that crap? (Monster "energy" drink, not the beer)I thought it was a bunch of sugar water with some caffeine spiked in and that it would be mainly teenagers drinking that stuff.

[3rd party JKor]

So they have the trademark with relation to energy drinks and they sent a cease and desist to a brewery using A DIFFERENT NAME that had applied for THAT EXACT NAME for a trademark with relation to beer? WTF are these idiots doing?

[consumptionjunction]

Does anybody actually drink that crap? (Monster "energy" drink, not the beer)I thought it was a bunch of sugar water with some caffeine spiked in and that it would be mainly teenagers drinking that stuff.

personally, I wish that everyone would just drink water (and beer, of course) from the tap... anything else seems too excessive.ooo, and coffee, can't forget coffee...

[consumptionjunction]

I hope to keep everyone here updated as beernews.org keeps me updated on the situation. Hansen made its first public response.What bothers me most is that they say:

Over the last eight years, Hansen Beverage Company has spent many millions of dollars promoting and establishing awareness for these trademarks around the world and has additionally spent millions of dollars registering and protecting these trademarks which are the Company’s single most valuable asset

.Single most valuable asset!?!? I know literally this is true, but this speaks more so to just how disgusting corporate culture has become. Product recognition is more important that the product itself. Please boycott this and any other similar product, even from other manufacturers, please.

[3rd party JKor]

I hope to keep everyone here updated as beernews.org keeps me updated on the situation. Hansen made its first public response.What bothers me most is that they say:.Single most valuable asset!?!? I know literally this is true, but this speaks more so to just how disgusting corporate culture has become. Product recognition is more important that the product itself. Please boycott this and any other similar product, even from other manufacturers, please.

Many companies no longer view themselves as selling products, they sell "lifestyle". The quality of the product is secondary to how it is positioned in the marketplace. That's what happens when you get marketing degrees running companies.

[zymot]

Many products work hard to get branded like this. Cars make great examples. Mercedes, BMW, Acura (IMHO)rely on that people think of them as "good cars." "I want a sedan, I will look and see what Mercedes has...."Ben & Jerry sold ice cream because people thought "Ben & Jerry make quality ice cream." Then the only decision was which flavor of ice cream your were going to get. But you knew they were all "good quality ice cream."Hansen has spent money to get people thinking that Hansen is "good soda" or Monster "gives you energy." As far as it being single most valuable asset, sure. You are buying Hansen brand soda. Not soda made in El Segundo, or soda in a round can or the cheapest soda on the shelf. No other assets gets you to put a six pack of Hansen soda in your cart as much as the name.If you owned a company, wouldn't you want your product to be thought of and associated with positive characteristics? Once you achieved that level and type of association, wouldn't you fight hard to maintain that?I think would save any contempt I might have for consumers that fall into some of these traps. zymot

[ThroatwobblerMangrove]

Many products work hard to get branded like this. Cars make great examples. Mercedes, BMW, Acura (IMHO)rely on that people think of them as "good cars." "I want a sedan, I will look and see what Mercedes has...."Ben & Jerry sold ice cream because people thought "Ben & Jerry make quality ice cream." Then the only decision was which flavor of ice cream your were going to get. But you knew they were all "good quality ice cream."Hansen has spent money to get people thinking that Hansen is "good soda" or Monster "gives you energy." As far as it being single most valuable asset, sure. You are buying Hansen brand soda. Not soda made in El Segundo, or soda in a round can or the cheapest soda on the shelf. No other assets gets you to put a six pack of Hansen soda in your cart as much as the name.If you owned a company, wouldn't you want your product to be thought of and associated with positive characteristics? Once you achieved that level and type of association, wouldn't you fight hard to maintain that?I think would save any contempt I might have for consumers that fall into some of these traps. zymot

Next - monster mills. I went to the store buy an energy drink and I came back with some SS rollers.