Monster Energy. Go ahead, I’ll wait for your eyes to finish rolling. The trademark bullying company with a side business in making beverages has been the subject of discussion here for years and years and years. Monster Energy is one of the most prolific trademark bullies I’ve ever come across. It behaves so absurdly in its bullying behavior that it would be fair for someone unfamiliar with its history to wonder if this was all some kind of bizarre intellectual property performance art. This is a company that has sued or opposed applications over trademark concerns everyone from companies that make fishing gear, to personal trainers, to a company that makes industrial paint.
I’ll remind you again that Monster Energy only creates two things: trademark litigation and beverages.
Well, Monster applied in India for a trademark on a slogan it uses in advertising, “Energy for the Journey.” Its initial application was denied by the Indian government, which decided that the slogan contained nothing but some generic words, and also does not include the company’s main identifying part of its name (“Monster”), and therefore does not work as a source-identifier for the consuming public. So the trademark application was denied. Monster appealed and now the Madras High Court has affirmed the earlier decision, refusing to grant Monster Energy a trademark on the slogan.
The respondent argued that the phrase “Energy for the Journey” comprised generic words commonly used in trade and was incapable of distinguishing the appellant’s goods from those of others. The Court noted that under Section 9(1) of the Act, descriptive or generic marks devoid of secondary significance or distinctiveness cannot be monopolized by any trader. The appellant admitted to having only proposed to use the mark, without any evidence of prior use or established goodwill.
The Court agreed with the respondent’s assessment, concluding that the proposed mark was inherently incapable of serving as a source identifier. It also highlighted that granting exclusivity over such a common phrase would unjustifiably limit its use by others in commerce.
It’s hard to argue with the court’s logic here. There’s nothing about this phrase, when viewed on its own and without context, that would call to mind Monster Energy at all. And the point of trademark laws generally is not for one company or entity to be able to lock up some random phrase just for the sake of it. Rather, it’s to prevent customer confusion in the marketplace. So, if the phrase isn’t associated with the brand, it doesn’t serve as a useful trademark.
Makes sense, right? Meanwhile, in America:
Yup, Monster Energy managed to get that very same generic, non-source-identifying mark approved and registered by the USPTO. Now, perhaps there are some subtle differences between American and Indian trademark law that explain this, but I don’t really think that matters. The point here is that the courts in India have a far better handle on how trademarks are supposed to be used than we do, specifically as it comports with the very purpose of trademark laws.
It sure would be nice if the USPTO would put a little more effort into its approval process than it does.
