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Monster Targets New Walmart Logo At TTAB

Source: Law360

Monster Targets New Walmart Logo At TTAB

November 15, 2022

Monster Energy is going to the Trademark Trial and Appeal Board to try to stop Walmart from registering a new logo for the retailer's in-house "Member's Mark" brand, which the energy drink brand says will cause confusion with Monster's "claw" logo.

In a notice filed Nov. 8, lawyers from Monster informed the trademark board that they were intending to fight a legal effort by Walmart Apollo LLC, the retail giant's intellectual property arm, to register a new mark to cover a logo that Walmart's membership-only Sam's Club outfit started rolling out this year for some of its generic goods called "Member's Mark."

The logo's use of the letter "M" could not stand, Monster's lawyers told the board.

The company behind the Monster brand of energy drinks (right) is picking a fight with Walmart over a new logo the retailer unveiled this year for its in-house "Member's Mark" brand (left). (Source: Court documents)

"Applicant's mark so resembles opposer's 'claw' icon, including as registered in the [U.S. Patent and Trademark Office] and in which opposer owns common law trademark rights, as to be likely, when used on or in connection with applicant's goods, to cause confusion," they wrote.

In addition to that, Monster's lawyers say Walmart's new logo "will dilute the distinctive qualities of [Monster's] 'Claw' Icon" and "will lessen the ability of [Monster's] marks to distinguish [Monster] goods and services."

They are challenging a pair of trademark applications that Walmart's lawyers filed at the board late last year.

This April, the retailer announced the new logo in a rebranding of its Sam's Club line, which it said represented "a new identity for its 'Member's Mark' brand ... that comes with an aspiration for all items to be of the highest quality while featuring trend-right innovation and a focus on people and the planet," according to a press release at the time.

"We respect the property rights of others," Walmart spokesman Marci Burks told Law360 in an email. "We are reviewing the filing and will respond as appropriate [at the USPTO]."

Representatives for Monster did not return a request for comment. Online, however, some trademark lawyers called the company's case a stretch.

Josh Gerben, a trademark attorney at Gerben IP, wrote in a post on Twitter that he did "not see any similarity between the logos," adding that he "would estimate that Walmart has a 99.9% chance of winning if this case went to trial."

Responding to Gerben's post, a former USPTO trademark examining attorney named Rachael Dickson asked, "Did Monster Energy hear all the jokes [intellectual property] attorneys make about them and decide to really lean into it?"

Legal fights between major brands over similar-looking trademarks don't go to trial very often, though they sometimes do. Cybersecurity giant Fortinet lost one in front of a jury last month against a newer rival called Fortanix.

Monster's lawyers have, however, had some success in pursuing cases at the trademark board. In 2020, they convinced a trademark board panel to stop a small company from registering "Monster Towel" as a trademark for beach towels. A few years earlier, however, they failed to prevent the operator of an online forum for owners of rare and exotic fish from registering the website's name, "MonsterFishKeepers."

Monster Energy is represented by Steven J. Nataupsky, Hans L. Mayer and Joseph A.R. Gerber of Knobbe Martens Olson & Bear LLP.

Counsel information for Walmart in the TTAB case was not immediately available Monday.

The case is Monster Energy Co. vs. Walmart Apollo LLC, case number 91281654, before the Trademark Trial and Appeal Board.


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