Metropolitan News-Enterprise


Monday, July 2, 2007


Page 1


Court: ‘Monster’ Maker May Not Stop Sale of Rival’s Drink


By TINA BAY, Staff Writer


The producer of “Monster” energy drinks may not prevent a competitor from selling its “Freek” beverage line in what it contends are confusingly similar containers, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Customers are not likely to confuse the two products because of their packaging, the court concluded, reversing a preliminary injunction granted to Hansen Beverage Company in its trade dress infringement suit against rival National Beverage Corporation.

Senior U.S. District Judge Edward Rafeedie, of the Central District California, had issued the order restraining National, the maker of Shasta soda, from selling or marketing its Freek energy drinks in their current containers, based on the finding that they “look quite similar” to Monster cans. Due to the “vast similarities” in appearance, the judge reasoned, Hansen was likely to succeed on its trade dress claim and thus entitled to a preliminary injunction.

On appeal, a unanimous panel said the finding of similarity was clearly erroneous.

Senior Judge William C. Canby Jr. wrote for the court:

“The two trade dresses are similar in overall appearance only to the extent that they both feature ‘aggressive’ graphics and bold accent colors against dark backgrounds. However, these elements are widely employed in the crowded energy drink market and are therefore unlikely to lead to confusion as to source.”

Monster containers bear a large clawed-out “M” and the word “MONSTER” imprinted in a bold color, and set against either a black or dark grey background. The beverage line consists of four flavor varieties, each of which uses a distinct color combination.

Freek, introduced last year, also consists of four drink varieties that are packaged in containers featuring a dark background and one of four accent colors, depending on the flavor. Freek cans prominently feature the word “FREEK” written in a stylized font and a depiction of the so-called Freek Man, described by Canby as “the distorted image of a frightening, evil-eyed creature’s face.”

The distinctive appearance of the competing trade dress “speaks for itself,” Canby opined.

“Monster products are distinguishable from the other energy drinks on the market largely because the word ‘Monster’ and a large ‘M’ are prominently displayed on the cans,” he said.

Freek’s containers do not feature either of those source-identifying marks, weighing heavily against a finding of consumer confusion, he explained.

Appearances aside, Hansen contended, confusion was likely because the terms “monster” and “Freek” are “confusingly similar in meaning,” and the Freek Man is the picture-equivalent of the word mark “MONSTER.”

But Canby said the word “monster” is “simply too indefinite and generalized” to support a finding of customer confusion. As for the “MONSTER” word mark, he reasoned, it was “so broad and ambiguous that consumers are unlikely to equate it with any particular image or symbol—much less an image as disembodied and stylized as the Freek Man.”

The opinion was joined by Judge Sidney R. Thomas and U.S. District Suzanne B. Conlon, of the Northern District of Illinois, sitting by designation.

The case is Hansen Beverage Company v. National Beverage Corp., 06-56390.


Copyright 2007, Metropolitan News Company