Monster Energy, 5 Hour Energy and Ohio State File Trademark Oppositions and Cancellations: New & Noteworthy TTAB Filings March 9 to 15, 2015

By Josh Gerben, Esq.

The edition of New & Noteworthy features Monster Energy, who seems to file oppositions against, well, everything. There are also a lot of design mark filings, including the Ohio State’s proceedings against the POISON NUT and others which provide interesting insight into how design marks are prosecuted, monitored, and ultimately opposed/cancelled.  

Also, for the second week in a row, Sazerac protects itself and its fellow beverage company’s from those trying to trademark what it claims are descriptive phrase. This time they opposed FARM TO TABLE for wine & beer.

Monster Energy Files Mulitple Oppositions

Before the Board has reported on Monster Energy many times, including Gerben IP founder and Before the Board editor Josh Gerben discussing Monster’s oppositions on Fox News. Monster owns dozens of Monster-formative marks, and, it seems to file a trademark opposition against every MONSTER-formative mark that gets published, including an application for MONSTER CLAW for footwear.

3/11/2015 – Link to Proceeding

It also filed an opposition against a frozen yogurt shop’s application for a design mark using the words MONSTER MIX SCARY TASTES GOOD!

3/11/2015 – Link to Proceeding

It also filed an opposition against AB MONSTER THE SCARIEST CORE WORKOUT ALIVE! Design Mark for exercise equipment.

3/11/2015 – Link to Proceeding

Finally, it opposed the “3-slash” design mark GARRA for jerseys and other apparel.

3/13/2015 – Link to Proceeding

Beverage Company Claims FARM TO TABLE is Descriptive for Beer & Wine

Beverage Company Sazerac filed an opposition against an application for FARM TO TABLE for beer & wine, claiming that the mark is descriptive and that anyone who offers beer or wine that is “farm to table” should be able to use this term descriptively. Sazerac most recently filed a trademark opposition against a DRINK KENTUCKY BOURBEN mark, using a similar argument.

3/11/2015 – Link to Proceeding

Owner of 2(X)IST Mark for Watches Opposes 2XLUCKY for Jewelry

An application of the mark 2XLUCKY for jewelry was opposed by H. Best, the owner of 2(X)IST for watches. H. Best claims that “Applicant’s Mark, which begins with the number 2 followed by the letter X, is highly similar to Opposer’s 2(X)IST Marks.” The Applicant filed its Answer, stating that

“[w]hile both Marks have a 2 and an “x” in them, any similarity stops there. Applicant’s Mark begins with the number 2 followed by the multiplication symbol x. Opposer’s Marks are completely dissimilar in that they begin with the number 2 followed by a left parenthesis, followed by the letter “x,” followed by a right parenthesis or 2(x). Opposer by placing the “x” inside the parentheses shows its intent that its “x” should be pronounced as in “to exist.” On the other hand Applicant’s Mark, by placing a small multiplication symbol between 2 and Lucky, means 2 times Lucky.”

Does 2(x)ist have the same commercial impression at 2XLUCKY or is H.Best overreaching in its attempt to police its trademark?

3/9/2015 – Link to Proceeding

STRANGE CRAFT BEER COMPANY Mark Opposed by STRANGE MUSIC

Opposer Strange Music, Inc. filed an opposition against STRANGE CRAFT BEER COMPANY, claiming a likelihood of confusion between the brewery and Opposer’s STRANGE MUSIC mark for apparel, and recorded and live music.  Strange Music also claims that it is “famous” for purposes of a dilution claim. The Opposer is listed as Strange Music Inc. but the attorneys claim they are attorneys for Amcor Industries. Does Strange Music have exclusive rights to the word STRANGE when used for beer because of its use on clothing and music performances? Is the STRANGE mark famous?

3/9/2015 – Link to Proceeding

Owner of the INSTANTCAROFFER.COM Design Mark Claims Priority and Likelihood of Confusion Over Applicant’s CAROFFER Design Mark

The owner of the INSTANTCAROFFER.COM design mark filed a notice of opposition against the design mark CAROFFER for a car-sales website and directory. Are both marks descriptive for their services? When comparing the design marks, is there really any likelihood of confusion?

3/10/2015 – Link to Proceeding

Ohio State Opposes Nut & Crossbones Design and Petitions to Cancel Poison Nut Marks

Ohio State, owner of several BUCKEYE trademarks, filed an opposition against a “nut & crossbones” design for apparel and filed cancellations against other POISON NUT-formative marks. While the designs and word marks do not appear to reference Ohio State or its mark on the face of the applications, the applicant is based out of Columbus, Ohio.

3/10/2015 – Link to Proceeding

Major League Baseball and Kansas City Royals Oppose KC CANDY Mark

Major League Baseball has a reputation of being what some would call a “trademark bully.” The MLB and the Kansas City Royal’s, owners of the KC mark for a variety of goods and services, opposed a confectionary’s mark for KC CANDY for “confectionery, namely, candy; candies; chewing gum.” Here is their “specimen” submitted to the USPTO:

3/9/2015 – Link to Proceeding

5 Hour Energy Opposes “Running Man” REAL Design Mark

5 Hour Energy owns a design mark in the silhouette of a running man (presumably hopped up on 5 hour energy drinks.) 5 Hour filed a trademark opposition against the application for REAL for a variety of foods and drinks, including energy drinks. 5 Hour claims that REAL’s “running man” logo is confusing similar to its design mark. 5 Hour also claims that the REAL element is merely descriptive as it describes food that is is authentic, natural, and/or organic. In the alternative, it claims that Applicant’s Mark is deceptively misdescriptive if the goods are not authentic, natural, and/or organic.

3/11/2015 – Link to Proceeding

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Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.