Monster Energy's Motion For Summary Judgement Gets Mixed Results

On August 2, 2017, Monster Energy Company brought a trademark action against BeastUp LLC, alleging trademark infringement under the Lanham Act, trademark dilution, and unfair competition under California statute and common law, arising out of BeastUp’s use of the “BEASTUP” mark, which is allegedly similar to Monster Energy’s “UNLEASH THE BEAST!” mark, and related claw marks. Monster Energy moved for summary judgment on October 4, 2018.

Monster began using a depiction of a Claw Icon mark and the term “UNLEASH THE BEAST!” on its packaging in 2002, and received trademark registrations for both in 2004. BeastUp registered its “BEASTUP” trademark in 2014.


Fed. R. Civ. P. 56(a) states that a court will grant summary judgment “if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

The moving party bears the initial burden of showing the court there is an absence of evidence to support the non-moving party’s case.[1] If the moving party successfully does so, the burden then shifts to the non-moving party to show there is a genuine issue of material fact.[2]

Summary judgment on trademark disputes under the Lanham Act, on likelihood of confusion grounds specifically, is generally disfavored due to the intensely factual nature of the analysis.[3]


The Lanham Act allows the holder of a protectable trademark to hold liable any other person who, without consent, “use[s] in commerce any…registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”[4]

To prevail on a trademark infringement claim under the Lanham Act, a plaintiff must prove: (1) that it has a protectable ownership interest in the mark, and (2) that the defendant’s use of the mark is likely to cause consumer confusion.[5] With respect to claims of trademark infringement or false designation of origin under the Lanham Act, a mark’s strength is evaluated based on two components: (1) the mark’s inherent distinctiveness, referring to its conceptual strength, and (2) the mark’s recognition in the market, referring its commercial strength.[6]

To prove a claim for dilution under the Lanham Act, “a plaintiff must show that (1) the mark is famous and distinctive, (2) the defendant is making use of the mark in commerce, (3) the defendant’s use began after the mark became famous, and (4) the defendant’s use of the mark is likely to cause dilution by blurring or dilution by tarnishment.”[7]

Federal registration of a trademark provides significant evidence of the mark’s validity and entitles the mark owner to a strong presumption that the mark is a protectable mark

When considering whether there is a likelihood of consumer confusion, it is often possible to reach a conclusion with respect to likelihood of confusion after considering only a few of the relevant factors. The factors typically considered are referred to as the Sleekcraft factors, although the eight Sleekcraft factors should not be thought of as an exhaustive list.


No triable issues of material fact existed as to whether Monster Energy’s marks were valid and protectable; the United States District Court, E.D. California, found that the marks were valid and protectable. It was undisputed that Monster Energy owns multiple trademark registrations for marks incorporating the word “beast,” as well as the Claw Icon. These registrations entitled Monster Energy to the presumption of validity and shifted the burden to BeastUp to show by a preponderance of the evidence that the mark is not protectable, which BeastUp failed to do.

Genuine issues of material fact existed as to the likelihood of consumer confusion between marks owned by Monster Energy, including “UNLEASH THE BEAST!” and related marks, and the “BEASTUP” mark owned by BeastUp, precluding Monster Energy’s motion for summary judgment. The more likely a mark is to be remembered and associated in the public mind with the mark’s owner, the greater protection the mark is afforded by trademark laws. After evaluating all the factors and the evidence provided by the parties, the United States District Court, E.D. California, found that Monster Energy failed to demonstrate, as a matter of law, the likelihood of consumer confusion between its products and BeastUp’s products, although it was a close call.


Monster Energy is known to be a prominent trademark bully, relentlessly mailing cease and desist letters to companies, large and small alike, regarding mostly baseless trademark claims. Monster Energy has amassed a long list of trademark violation claims against anyone who uses the terms “monster” or “beast” as part of their branding.

The term “trademark bully” is often used to describe powerful, well-known individuals or companies who either make over-reaching claims or are overly aggressive in pursuing trademark claims. Over-reaching tends to occur when there is no commercial impact to the enforcer by the alleged trademark violation. Some of the various types of behavior demonstrated by trademark bullies include: unreasonable demand letters, overly burdensome litigation, or failing to agree to a reasonable compromise.


Navigating the ins and outs of securing patents and trademarks for your business can be tricky. There are various legal regulations and considerations at play, which can make it difficult to understand the proper course of action. A knowledgeable patent and trademark attorney can make all of the difference, helping you avoid pitfalls and resolve any issues that might arise.

If you have a legal issue you need help with, the attorneys at Whitcomb, Selinsky Law PC would love to share their expertise with you. Please call (303) 543-1958 or complete an online contact form.

[1] Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

[2] Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing Fed. R. Civ. P. 56(e); First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

[3] Interstellar Starship Servs., Ltd. v. Epix Inc., 184 F.3d 1107, 1109 (9th Cir. 1999).

[4] 15 U.S.C. § 1114(1)(a).

[5] Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1202 (9th Cir. 2012) (quoting Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011)).

[6][6] Stone Creek, Inc. v. Omnia Italian Design, Inc., 875 F.3d 426, 432 (9th Cir. 2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1984, 201 L.Ed.2d 248 (2018) (citing Lahoti v. Vericheck, Inc., 636 F.3d 501, 508 (9th Cir. 2011)).

[7] Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 634 (9th Cir. 2008).

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