Monster Energy, MonsterFishKeepers and a likelihood of confusion

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The US Trademark Trial and Appeal Board (TTAB) has ruled on an opposition brought by Monster Energy Company to the use by of the marks MONSTERFISHKEEPERS and “M” symbol in connection with clothing, accessories and stickers.  Monster Energy claimed that the use of the marks would cause confusion with its own MONSTER marks. The two competing signs are shown here. resisted the opposition on the basis that an informed consumer would be unlikely to mistake the two brands. They argued that their brand was targeted at the keepers of large fish in specialised online stores and aquarium stores while the Monster Energy brand was more openly marketed in sports-related and traditional retail outlets.

The TTAB has upheld the opposition in relation to the “M” symbol finding, perhaps not too surprisingly, that there would be a likelihood of confusion in respect of overlapping clothing items. Notwithstanding this, however, the opposition in relation to MONSTERFISHKEEPERS was refused. The TTAB also rejected Monster Energy’s claim for dilution by blurring.

The TTAB found that the mark MONSTER was “somewhat weak for clothing” but that the letter “M” was not similarly weak. In reaching its conclusion, the TTAB set out a helpful summary of the test for confusion: “we must further keep in mind that the test is not whether the marks can be distinguished when subjected to a side-by-side comparison, but rather the focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trade marks.” The TTAB added that “under actual marketing conditions, consumers do not necessarily have the luxury of making side-by-side comparisons between marks, and must rely upon their imperfect recollections”.

In the case of MONSTERFISHKEEPERS, the TTAB found that the similarity based on the incorporation of the MONSTER mark in the applicant’s mark was outweighed by the differences, in particular the connotation of MONSTERFISHKEEPERS versus that of MONSTER. On the dilution argument, the TTAB found that there was little evidence on the applicant’s part to associate its mark with the MONSTER mark and no proof of actual confusion.

The case is a useful illustration of the approach to be taken towards trade mark confusion.