Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1039702
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`Filing date:
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`03/03/2020
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`91250990
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`Party
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`Correspondence
`Address
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Defendant
`Interpet Limited
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`RAY K HARRIS
`FENNEMORE CRAIG PC
`2394 E CAMELBACK ROAD SUITE 600
`PHOENIX, AZ 85016
`UNITED STATES
`ip@fclaw.com, rharris@fclaw.com
`602-916-5000
`
`Reply in Support of Motion
`
`Ray K. Harris
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`ip@fclaw.com, rharris@fclaw.com, mvasta@fclaw.com
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`/Ray K. Harris/
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`03/03/2020
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`Attachments
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`3-3-2020 reply ISO motion for judgment on the pleadings.pdf(56055 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Monster Energy Company,
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` Opposer,
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`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Applicant.
`__________________________________________
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`v.
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`Interpet Limited
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`Opposition No. 91250990
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`Serial No: 88/210846
`Mark: POND MONSTA
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`APPLICANT’S REPLY IN SUPPORT OF
`MOTION FOR JUDGMENT ON THE PLEADINGS
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`Applicant Interpet Limited (“Applicant”) hereby files this Reply in Support of its Motion for
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`Judgment on the Pleadings, filed on January 27, 2020 (the “Motion”). Opposer Monster Energy Company
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`(“Opposer”) filed its Opposition to Applicant’s Rule 12(c) Motion for Judgment on the Pleadings on
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`February 18, 2020 (the “Response”).
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`Opposer’s Notice of Opposition No. 91250990, filed on September 17, 2019 (the “Opposition”)
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`does not support a finding that Opposer has a reasonable belief that it will be damaged by Applicant’s
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`registration. Opposer cannot show that any reasonable person would see Applicant’s Mark on Applicant’s
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`product and associate it with Opposer’s Monster Marks. Judgment on the pleadings is appropriate under
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`the facts presented here. Accordingly, Applicant respectfully asks this Board to grant its Motion and dismiss
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`the Opposition in its entirety.
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`BRIEF FACTUAL BACKGROUND
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`Opposer devotes most of the Response to an effort to create an issue of fact. Here the controlling
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`facts are alleged in the Opposition and in Applicant’s Answer to Opposition, filed October 22, 2019
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`(“Answer”). This Board need only review the trademarks claimed by Applicant and Opposer, and the
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`1
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`

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`products on which they are used, to decide that there is no reasonable possibility of consumer confusion
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`in this case.
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`A.
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`The Marks and Products are in No Way Similar
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`Applicant: Applicant filed to register the mark POND MONSTA (“Applicant’s Mark”), which
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`consists of the words “pond monsta” in lower case letters. See Opposition at ¶ 1; Answer Exhibit A.
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`Applicant has used Applicant’s Mark on a vacuum cleaner made specifically for ponds or similar
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`environments. See U.S. Trademark Application Serial No. 88/210846, dated November 29, 2018 (the
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`“Application”). Applicant seeks to register Applicant’s Mark in International Class 7, for use with “vacuum
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`cleaners for ponds and aquatic environments; cleaning machines for ponds; suction nozzles for vacuum
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`cleaners adapted for ponds and aquatic environments; brushes being parts of cleaning machines for ponds
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`and for vacuum cleaners adapted for ponds and aquatic environments. See Opposition at ¶ 1. All of
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`Applicant’s claimed uses relate to pond vacuums and pond vacuum accessories only. Applicant does not
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`claim use of Applicant’s Mark on tools.
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`Opposer: Opposer has several related trademarks containing the word MONSTER, and usually
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`incorporating the word ENERGY, including their mark MONSTER ENERGY. See Opposition at ¶ 2;
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`Opposition at Exs. 1-12 (Opposer’s marks are collectively referred to as the “Monster Marks”). The
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`Monster Marks are usually stylized – although not always – by including a letter “M” that is intended to
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`look like “claw” marks, and special font used for the remainder of the mark’s letters. Id. Opposer does not
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`allege that it has any rights to the mark POND MONSTA.
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`Opposer is not in the business of selling pond vacuums or any similar or related product. Rather,
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`Opposer sells energy drinks under the Monster Marks. See Opposition at ¶ 2. In addition to energy drinks,
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`Opposer puts the Monster Marks on “nutritional supplements, clothing, hats, bags, helmets, gloves, sports
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`equipment, stickers, lanyards, accessories, and other products.” Id. Opposer does not allege that it has
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`“tools” listed as goods sold under the Monster Marks in any registration. See generally Opposition at Exs.
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`1-12. Although Opposer alleges using the Monster Marks on “numerous other products,” Opposer does not
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`allege use for tools. Id.
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`2
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`In Opposer’s Registrations, color is either “not claimed as a feature” of the Monster Marks, id. at
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`Exs. 1-4, or is not mentioned. Id. at Exs. 5-12. Thus, color is not a basis for determining confusion here.
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`B.
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`The Opposition is Based Only On the Similarity of the Marks
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`The Opposition only alleges damages based on likelihood of confusion between Applicant’s Mark
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`and the Monster Marks. See Opposition at ¶ 28. Opposer alleges “Applicant’s Mark so resembles
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`Opposer’s MONSTER Marks…as to be likely, when used on or in connection with the goods and services
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`as they are identified in the Application, as to cause confusion, or to cause mistake or to deceive within the
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`meaning of Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d).” Id. Although Opposer makes
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`conclusory and fleeting allegations that its mark is famous, id. at ¶¶ 11, 26, Opposer does not allege dilution
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`by blurring or dilution by tarnishment under 15 U.S.C. § 1125(c). Monster also does not allege any facts
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`supporting any allegation of fame at Applicant’s date of first use.
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`II.
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`LEGAL ARGUMENT
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`A.
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`Opposer’s Allegations of Damage Are Merely Conclusory
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`Pursuant to 15 U.S.C. § 1063(a), a person may oppose the registration of a trademark if that person
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`“believes that he would be damaged by the registration.” Courts have found that to have standing to file an
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`Opposition under 15 U.S.C. § 1063, an Opposer must have a “reasonable basis” for the belief in the alleged
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`damage. Ritchie v. Simpson, 170 F.3d 1092, 1095 (Fed. Cir. 1999).1 This cannot be merely a subjective
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`belief but must have a “reasonable basis in fact.” Id. at 1097. Opposer’s alleged belief that damage is likely
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`is based upon 15 U.S.C. § 1052(d) (a trademark shall not be registered if it “[c]onsists of or comprises a
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`mark which so resembles a mark registered…as to be likely, when used on or in connection with the goods
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`of the applicant, to cause confusion, or to cause mistake, or to deceive”). See Opposition at ¶ 28. Opposer’s
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`claim of damage consists merely of a recitation of 15 U.S.C. § 1052(d), without providing any supporting
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`facts. Id. There are no other allegations of damage in the Opposition.
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`Opposer insists that it has sufficiently alleged the “reasonable belief” that damage is likely by
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`1 Although, as stated by Opposer, the Ritchie case dealt with a claim under 15 U.S.C. § 1052(a), related to
`scandalous matter, the “reasonable basis” requirement applies to all oppositions filed under 15 U.S.C.
`§ 1063, including this Opposition.
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`3
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`

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`merely alleging Applicant’s Mark “so resembles” the Monster Marks “as to be likely to cause confusion.”
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`See Response at 5. However, there are no factual allegations that support this conclusory statement. “While
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`legal conclusions can provide the complaint's framework, they must be supported by factual allegations.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1940 (2009). “A pleading that offers labels and
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`conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint
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`suffice if it tenders naked assertions devoid of further factual enhancement.” Bosarge v. Mississippi Bureau
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`of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015) (internal citations omitted). Therefore, the Board must look
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`at the factual allegations and determine whether the facts could support a “reasonable belief” of a likelihood
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`of confusion based on the similarity of the marks, the only basis of damage that has been alleged.
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`B.
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`The Lack of Similarity of the Marks and Goods Is Determinative
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`Opposer argues that there are relevant issues of material fact to be resolved in this case. Opposer
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`claims that this Board should consider other DuPont factors2 in deciding whether there is an issue of fact
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`regarding likelihood of confusion, including fame of the Monster Marks and channels of trade. But here
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`absence of similarity of the marks or relatedness of the goods is dispositive. “Not all of the DuPont factors
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`are relevant to every case, and only factors of significance to the particular mark need be considered.” Coach
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`Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1366 (Fed. Cir. 2012) (citing In re Mighty Leaf
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`Tea, 601 F.3d 1342, 1346 (Fed.Cir.2010)). For example, “the Board can focus on dispositive factors, such
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`as similarity of the marks and relatedness of the goods.” Id. (citing Herbko Int'l, Inc. v. Kappa Books,
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`Inc., 308 F.3d 1156, 1164 (Fed.Cir.2002)) (emphasis added). The Board need only look to the lack of
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`similarity of the marks and the lack of relatedness of the goods to readily determine that there can be no
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`likelihood of confusion and that Opposer can have no reasonable basis for belief of damage.
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`The Marks. The Applicant’s POND MONSTA mark and the MONSTER Marks create a different
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`commercial impression based on the appearance, sound and meaning of the marks. See Herbko Int’l, Inc.,
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`308 F.3d at 1165 (“the similarity or dissimilarity of the marks in their entireties is a predominant inquiry”).
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`For this analysis, the Board must look at the marks in their entirety as “it is improper to dissect a mark.” Id.
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`2 In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 U.S.P.Q. 563 (C.C.P.A. 1973).
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`4
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`

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`at 1368. “The proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are
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`sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks
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`would be likely to assume a connection between the parties.” Id. (quoting Leading Jewelers Guild, Inc. v.
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`Ljow Holdings, LLC, 82 U.S.P.Q.2d 1901, *5 (T.T.A.B. 2007); see also Herbko Int’l, Inc., 308 F.3d at 1165
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`(“This inquiry examines the relevant features of the marks, including appearance, sound, connotation, and
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`commercial impression.”). In the present case the lack of similarity of the marks leads to a finding of no
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`likelihood of confusion.
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`Opposer’s marks, MONSTER and MONSTER ENERGY, connote the superhuman energy or
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`endurance the consumer derives from the Opposers goods. Applicant’s POND MONSTA mark connotes
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`the strength of the good itself (the pond vacuum) and the association with a “pond” readily distinguishes
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`Applicant’s mark from Opposer’s marks. Applicant’s Mark creates a completely different commercial
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`impression compared to the Monster Marks.
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`The Goods. The lack of confusion is further compelled by the differences in the goods. Where the
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`goods are unrelated, even identical, or nearly identical, trademarks may not justify a finding of likelihood
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`of confusion. Coach Servs., Inc., 668 F.3d at 1368. For example, in Coach Services, the Board decision
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`under review compared two marks, both consisting of the word “COACH.” Id. at 1360-61. The applicant
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`used its COACH mark for “books and software used to assist teachers and students in preparing for
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`standardized tests.” Id. at 1360. The opposer used its COACH mark for “a wide variety of accessible
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`luxury products, including handbags, luggage, clothing, watches, eye glasses, and wallets.” Id. at 1361.
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`The Circuit Court agreed with the Board that even though the marks were “identical in sound and
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`appearance,” the marks “have different meanings and create distinct commercial impressions.” Id. at 1369.
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`The COACH mark “when applied to educational materials, brings to mind someone who instructs students”
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`whereas “when used in connection with luxury leather goods,” the same mark “brings to mind traveling by
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`carriage.” Id. Thus, “these distinct commercial impressions outweigh the similarities in sounds and
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`appearance, particularly since…the parties’ goods are unrelated.” Id. Based on this, the Court found that
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`the marks are “unrelated” and that “no likelihood of confusion would arise between the parties’ marks.” Id.
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`5
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`

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`at 1371. This was true even though the opposer’s COACH mark was considered “famous.” Id. The Court
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`noted that fame is “insufficient standing alone to establish likelihood of confusion.” Id. at 1371; see also
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`Univ. of Notre Dame Du Lac v. J.C. Gourmet Food Imports Co., Inc., 703 F.2d 1372, 1374 (Fed.Cir.1983)
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`(“Likely ... to cause confusion means more than the likelihood that the public will recall a famous mark on
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`seeing the same mark used by another.”).3
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`Similarly, in University of Notre Dame Du Lac, the court affirmed the dismissal of the opposition
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`where it found there could be no likelihood of confusion even between identical NOTRE DAME marks.
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`Univ. of Notre Dame Du Lac, 703 F.2d at 1378. The Board (and reviewing court) found that the University’s
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`use of the mark (for clothing, stationary, glassware, jewelry, novelty items) and that of the applicant (for
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`gourmet cheeses) were sufficiently different “to preclude a likelihood of confusion” within the meaning of
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`15 U.S.C. § 1052(d). Id. at 1374. Again, this differentiation results despite the fame of the opposer’s mark.
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`Id; see also Blue Man Prods. Inc. v. Tarmann, 75 U.S.P.Q.2d 1811, 1820–21 (T.T.A.B.2005), reversed on
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`other grounds by Blue Man Prods., Inc. v. Tarmann, No. CIV.A. 05-2037 (JDB), 2008 WL 6862402, at *1
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`(D.D.C. Apr. 3, 2008) (dismissing an opposition after finding no likelihood of confusion between the marks
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`BLUE MAN GROUP and BLUEMAN because of the different connotations coming from how the marks
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`are used); In re Sears, Roebuck & Co., 2 U.S.P.Q.2d 1312, 1314 (T.T.A.B.1987) (finding no likelihood of
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`confusion between CROSSOVER for brassieres and CROSSOVER for ladies' sportswear because of their
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`different commercial impressions).
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`The product on which Applicant uses Applicant’s Mark is completely unrelated to the products on
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`which Opposer uses the Monster Marks. Pond vacuums are not related to energy drinks, nutritional
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`supplements, hats, helmets, or any other product sold by Opposer.
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`3 As noted in the Response, the Court found that opposer had standing even though there was no likelihood
`of confusion. However, the finding of standing was based on the fact that opposer properly alleged harm
`by alleging facts supporting a claim of dilution, a claim based on the fact that the marks were identical. See
`Coach Services, Inc., 668 F.3d at 1362, 1377. Here, there is no standing because the only allegations of
`harm are related to the alleged similarity of the marks, which is unreasonable as explained herein. Opposer
`does not allege dilution. Moreover, as explained below, Opposer cannot properly allege dilution based on
`these facts where the marks are so dissimilar. Thus, Opposer lacks standing.
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`6
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`

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`Applicant’s Marks and the MONSTER Marks do not Create Confusion. As indicated in the
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`above-discussed cases, differences in the goods would negate any likelihood of confusion even if the marks
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`were identical. In this case, Applicant’s Mark (POND MONSTA) and the Monster Marks bear no
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`resemblance to one another. They do not contain any identical words. Although “monsta” is a fanciful
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`derivation of the word “monster,” it creates a completely distinct impression from the Monster Marks.4
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`Opposer does not claim rights to all derivations of the word “monster.” Furthermore, Applicant’s Mark is
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`not stylized in any way similar to the way in which the Monster Marks are often stylized.
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`In the Response, Opposer claims to use the Monster Marks on “toolboxes” and in connection with
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`events involving third-party sponsorship by companies in the tool industry. Response at 12. But toolboxes
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`are also unrelated to pond vacuums. A pond vacuum is neither a toolbox nor a “tool,” nor is it related to
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`“tools” in the sense that a “toolbox” is related to “tools.” Opposer does not even list “tools” as a use of the
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`Monster Marks in any of its registrations. Moreover, third-party sponsorships by tool manufacturers are
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`irrelevant to Opposer’s trademark rights in the Monster Marks. Opposer cites no authority for the
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`remarkable proposed expansion of trademark rights based on third party goods and services.
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`Due to the vast differences between the products and marks, an analysis of the remaining DuPont
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`factors is unavailing. Coach Servs., Inc., 668 F.3d at 1366 (the Board can focus on “dispositive factors,
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`such as similarity of the marks and relatedness of the goods.”). The point is simple: no reasonable person
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`who encounters the marks on the products in question, even side by side, would be likely to assume a
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`connection between the parties.5 Opposer’s contrary position is absurd. Under the undisputed facts, there
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`4 Other tribunals have found that Opposer does not own the rights to all derivations of the word “monster”
`for all products. For example, Opposer lost an opposition (and its appeal) against “Monsta Pizza” in the
`United Kingdom. See https://www.worldipreview.com/news/monster-energy-loses-appeal-against-pizza-
`eatery-trademarks-17462?utm_source=2.+World+IP+Review&utm_campaign=1c0ae257f3-
`WIPR_Digital_Newsletter_29_09_2017_COPY_01&utm_medium=email&utm_term=0_d76dcadc01-
`1c0ae257f3-27094121
`
`5 The application to register POND MONSTA contains no restriction on channels of trade so Opposer
`argues the channels of trade are the same. Of course, nobody expects to find a pond vacuum in a 24-hour
`convenience store where Opposer’s energy drinks are sold. But even if the products were available in the
`same channels of trade, the POND MONSTA mark remains distinctive for pond vacuums and no confusion
`is likely – as evidenced by the lack of actual confusion.
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`7
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`

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`can be no reasonable belief that Opposer will be harmed by Applicant’s registration of POND MONSTA
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`due to likelihood of confusion pursuant to 15 U.S.C. § 1052(d), the only basis for harm alleged in the
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`Opposition. Accordingly, Opposer lacks standing and Applicant is entitled to judgment on the pleadings.
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`C.
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`The Alleged Fame of the Monster Marks Is Irrelevant
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`The Fame Factor will not Overcome the Differences in the Marks and the Goods. Recognizing
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`the argument as to similarity is weak, Opposer focuses on the alleged fame of its marks, seeking greater
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`protection than a non-famous mark. But in the Opposition, Opposer only makes two fleeting, conclusory
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`references to its alleged fame. See Opposition at ¶¶ 11, 26. These fleeting references of fame do not provide
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`a factual basis for the Opposition to continue.
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`As shown in the Coach Services and University of Notre Dame Du Lac cases above, the fame of
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`the Monster Marks will not support a likelihood of confusion where the marks are not identical and the
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`goods are not related. Opposer must show a reasonable basis for a belief it will be damaged and Opposer
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`only alleges damages based on a likelihood of confusion relating to similarity of the marks under 15 U.S.C.
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`§ 1052(d). See Opposition at ¶ 28. Fame is only one factor of the thirteen DuPont factors for the likelihood
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`of confusion analysis.6 As discussed above, the similarity of the marks and the relatedness of the goods
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`have been found to be “dispositive factors” in cases similar to this Opposition Coach Servs., Inc., 668 F.3d
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`at 1366. Opposer’s mere use of the word fame is “insufficient standing alone to establish likelihood of
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`confusion.” Id. at 1371. The Board has found on multiple occasions that despite the alleged fame of a
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`mark, if the marks and products are sufficiently different from one another, there can be no likelihood of
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`confusion. Id; see also Univ. of Notre Dame Du Lac, 703 F.2d at 1374.
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`Even Opposer’s own case references support Applicant’s position in this regard. See e.g., Response
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`at 9 (quoting Kenner Parker Toys). In Kenner Parker Toys, it is true that the Court focused on the fame of
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`the opposer. But, as quoted by Opposer, the case involved “competing” marks, unlike the ones in this case.
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`Kenner Parker Toys Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 351 (Fed. Cir. 1992). In Kenner Parker
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`Toys, the applicant, a children’s arts and crafts supplies seller, attempted to register the mark FUNDOUGH
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`6 Other than fame and channels of trade (see note 5 above), Opposer does not argue any other DuPont
`factors; thereby conceding the other factors do not support Opposers claim.
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`8
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`

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`for selling a “water-based modeling compound.” Id. The opposer, Kenner, was toy company that owns
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`rights to the mark PLAY-DOH, also for a modeling compound. Id. Thus, the marks sounded similar and
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`were used for identical products by competing companies. Id. The Court mentions the fact that the marks
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`are “competing” multiple times before conducting a fame analysis. Id. at 352. But even in that case, the
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`Court noted that “different factors may play dominant roles in determining likelihood of confusion” in
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`different cases. Id.
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`Conversely, in our case, the marks do not sound or look similar. The products are not identical nor
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`related whatsoever. Moreover, the Applicant is not a competitor of Opposer. This is not a case in which
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`the fame of Opposer’s mark is helpful in a “likelihood of confusion” analysis.7
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`Opposer Has Not Alleged Dilution. Opposer alleges a likelihood of confusion claim based on
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`similarity of the marks under 15 U.S.C. § 1052(d), not a dilution claim based on 15 U.S.C. §§ 1052 (last
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`paragraph) and 1125(c). Opposer had an opportunity to allege dilution but did not do so. Opposer cannot
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`now support its Opposition by claiming there are genuine issues of fact relating to dilution based on the
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`fame of its Monster Marks because that claim was not alleged in the Opposition.
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`Nor should Opposer be permitted to amend its Opposition to include a dilution claim because
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`doing so would be futile. Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d
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`1339, 1353 (Fed. Cir. 2006) (leave to amend may be denied if the amendment would be futile); 37 C.F.R.
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`§ 2.107 (pleading in an opposition proceeding may be amended in the same manner as those in civil actions).
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`Under 15 U.S.C. § 1125(c), “dilution by blurring” means “association arising from the similarity between
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`a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.” In addition
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`to fame, the Board in a “dilution by blurring” case must analyze “the degree of similarity between the
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`marks.” 15 U.S.C. § 1125(c)(2)(B)(i). Similarly, a “dilution by tarnishment” analysis looks at similarity
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`so as to assess the “association arising from the similarity between a mark or trade name and a famous mark
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`that harms the reputation of the famous mark.” 15 U.S.C. § 1125(c)(2)(C). Thus, the fact that these two
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`7 Even if the Court were to consider fame in its analysis, Opposer has failed to allege sufficient facts
`supporting its conclusory allegations of fame during any time period, much less at the date of Applicant’s
`first claimed use.
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`9
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`

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`marks are completely dissimilar conclusively demonstrates that even if a dilution claim was properly
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`alleged – which it was not – it also would fail at this stage. Of course, Opposer did not allege a dilution
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`claim or move to amend. The Board should find in favor of Applicant despite Opposers alternative request
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`for leave to amend.
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`III.
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`CONCLUSION
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`A pond vacuum is not similar or related to an energy drink or any of the other products on which
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`Opposer uses the Monster Marks. Furthermore, the Applicant’s mark for pond vacuums does not bear the
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`word “Monster” nor the word “Energy” (nor any of the other related Monster Mark words) and does not
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`include the same stylization. The only reasonable inference on the facts presented is no likelihood of
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`confusion. If the Opposition is permitted to proceed based on the facts alleged, it would lead to a great
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`expansion of trademark rights that is not supported by the law and a waste of resources for the parties and
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`the Board. Applicant should not be bullied into litigating an entire, expensive opposition proceeding to
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`obtain a registration for a mark that it has already used for years and that is in no way confusingly similar
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`to that of Opposer. Judgment on the pleadings is proper in favor of Applicant.
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`Dated: March 3, 2020
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`Respectfully submitted
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`_/Ray K. Harris/___________________
`Ray K. Harris
`Mario C. Vasta
`Fennemore Craig, P.C.
`2394 E. Camelback Road, Suite 600
`Phoenix, Arizona 85016
`Attorney for Applicant
`Interpet Limited
`
`10
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`

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`Certificate of Service
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`I hereby certify that a true and complete copy of the foregoing Answer to Notice of Opposition was served
`via first class mail on March 3, 2020 to:
`
`Steven J. Nataupsky
`Baraa Kahf
`Jason A. Champion
`Alexander D. Zeng
`Knobbe, Martens, Olson & Bear, LLP
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`
`Signature: _/Susie S. Simpson/______________________
`
`Date: __March 3, 2020_____________________
`
`15578927
`
`11
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`