Monster Energy’s 60% “Net” Confusion Survey Comes Up Empty

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Monster Energy’s 60% “Net” Confusion Survey Comes Up Empty, Op. 1, No. 41

For several years now, Monster Energy Co. has been crushing it in the energy drink space. It offers several lines of "Monster" drinks, owns 25 registered trademarks, generates millions from licensing deals, and creates loads of promotional swag emblazoned with the Monster trademarks, including clothing, bags, towels, blankets and accessories.

So, you can imagine that Monster growled loudly when four friends came together to launch their "4Monster" brand, selling such things as "towels, blankets, backpacks and robes" with this word mark and logo combination:

Monster sued. See Monster Energy Co. v. Jinangsu Sitouguai Indus. Co., No. 22-cv-590-LL-DDL, 2024 U.S. Dist. LEXIS 204649 (S.D. Cal. Sept. 23, 2024). It amassed a survey trifecta showing fame, secondary meaning, and likelihood of confusion.

The fame and secondary meaning surveys showed extensive recognition of the Monster Energy trademark. But the Court was not persuaded that this strength should be extended to non-drinkable items, particularly given that Monster Energy "failed to adduce evidence to support its assertion that its towel and bag products are available for sale online to the public." Monster Energy Co. at *26.

On Monster Energy's likelihood of confusion survey, the expert showed survey respondents the following image:

He then asked them, "[w]ho or what company do you believe makes or puts out this microfiber towel and carrying case?" According to the expert's report, approximately 60% of the test cell respondents provided an answer that fell into the following category: "Monster Energy Drinks," "Monster," "Energy drinks," "drinks," etc." (None of the respondents in the control cell--who were shown a "4Mammoth" control stimulus--provided an answer falling into this response category).

Based on such a monstrously high confusion rate, you would think the Court would have given this survey significant weight. It did not. It found this evidence "mixed" and "neutral." The Court granted Defendant's motion for summary judgment. Why did this survey not hit the spot?

Here's what the Court stated:

"While [the expert] concludes that 60.4% of the respondents were confused about the relationship between Plaintiff and Defendants products, he counted instances of confusion as those where respondents indicated the source of the test case as any one of the following entities: 'Monster Energy Drinks/Monster/Energy drinks/etc.' Hollander Expert Report ? 43. There is no entity 'Monster' in this case, and the registered trademarks for the non-beverage products either have the distinctive 'M' claw logo with the words Monster Energy next to or underneath the claw logo or are for 'Monster Army' marks. The fact that [the expert's] survey question combined the responses for the three terms: 'Monster Energy drinks, Monster, [and] energy drinks' makes it difficult to rely on this data."

Id. at * 42.

The Takeaway. The Court’s concern appeared to be whether respondents who answered "Monster" were referring to Plaintiff Monster Energy or were simply reading the "4Monster" stimulus and answered "Monster." The former would show possible confusion, but the latter would not. The way the data was presented to the Court would not allow it to make a determination one way or the other.