Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA Tracking number:
`ESTTA1056573
`05/19/2020
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Notice of Opposition
`
`Notice is hereby given that the following party opposes registration of the indicated application.
`
`Opposer Information
`
`Name
`Granted to Date
`of previous ex-
`tension
`Address
`
`Attorney informa-
`tion
`
`Monster Energy Company
`05/20/2020
`
`1 MONSTER WAY
`CORONA, CA 92879
`UNITED STATES
`
`Ari Feinstein
`KNOBBE MARTENS OLSON & BEAR LLP
`1717 Pennsylvania Avenue. NW, Ste. 900
`Washington, DC 20006
`UNITED STATES
`efling@knobbe.com, MEC.TTAB@knobbe.com
`(202) 640-6400
`
`Applicant Information
`
`Application No
`Opposition Filing
`Date
`Applicant
`
`88622348
`05/19/2020
`
`Nitro-Beast
`15598 Oakdale rd
`Chino Hills, CA 91709
`UNITED STATES
`
`Publication date
`Opposition Peri-
`od Ends
`
`01/21/2020
`05/20/2020
`
`Goods/Services Affected by Opposition
`
`Class 005. First Use: 0 First Use In Commerce: 0
`All goods and services in the class are opposed, namely: Dietary supplement drink mixes; Diet-
`arysupplements; Dietary and nutritional supplements; Nutritional supplements; Powdered nutritional
`supplement drink mix
`
`Grounds for Opposition
`
`Priority and likelihood of confusion
`Other
`
`Trademark Act Section 2(d)
`Common law rights as asserted in the Notice of
`Opposition
`
`Marks Cited by Opposer as Basis for Opposition
`
`U.S. Registration
`No.
`
`4482659
`
`Application Date
`
`05/15/2013
`
`

`

`Registration Date
`
`02/11/2014
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`Design Mark
`
`PUMP UP THE BEAST!
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 005. First use: First Use: 2013/03/18 First Use In Commerce: 2013/03/18
`Nutritional supplements in liquid form;vitamin fortified beverages
`
`U.S. Registration
`No.
`Registration Date
`
`4546402
`
`06/10/2014
`
`Word Mark
`Design Mark
`
`PUMP UP THE BEAST!
`
`Application Date
`
`05/15/2013
`
`Foreign Priority
`Date
`
`NONE
`
`Description of
`Mark
`Goods/Services
`
`U.S. Registration
`No.
`Registration Date
`
`Word Mark
`
`NONE
`
`Class 032. First use: First Use: 2013/03/18 First Use In Commerce: 2013/03/18
`Non-alcoholic beverages, namely, non-alcoholic and non-carbonated drinks en-
`hanced with vitamins, minerals, nutrients, proteins, amino acids and/or herbs;
`non-carbonated energy or sports drinks
`
`5783086
`
`Application Date
`
`04/13/2018
`
`06/18/2019
`
`Foreign Priority
`Date
`UNLEASH THE SALTY BEAST!
`
`NONE
`
`

`

`Design Mark
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 032. First use: First Use: 2018/08/00 First Use In Commerce: 2018/08/00
`Non-alcoholic beverages, namely, energydrinks, soft drinks, sports drinks, and-
`fruit juice drinks
`
`U.S. Registration
`No.
`Registration Date
`
`5820901
`
`07/30/2019
`
`Word Mark
`Design Mark
`
`UNLEASH THE BEAST!
`
`Application Date
`
`01/16/2019
`
`Foreign Priority
`Date
`
`NONE
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 005. First use: First Use: 2002/04/16 First Use In Commerce: 2002/04/16
`Nutritional supplements in liquid form
`Class 020. First use: First Use: 2017/12/02 First Use In Commerce: 2017/12/02
`Furniture; chairs; gaming chair
`Class 043. First use: First Use: 2016/02/03 First Use In Commerce: 2016/02/03
`Bar services; café services; mobile restaurant services; restaurant services;
`mobile café services for providing food and drink
`
`U.S. Registration
`No.
`Registration Date
`
`5628025
`
`12/11/2018
`
`Word Mark
`
`REHAB THE BEAST!
`
`Application Date
`
`11/03/2010
`
`Foreign Priority
`Date
`
`NONE
`
`

`

`Design Mark
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 005. First use: First Use: 2011/03/02 First Use In Commerce: 2011/03/02
`nutritional energy supplements in liquid form; nutritional supplement bever-
`agescontaining vitamins
`
`U.S. Registration
`No.
`Registration Date
`
`2769364
`
`09/30/2003
`
`Application Date
`
`12/18/2002
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`Design Mark
`Description of
`Mark
`Goods/Services
`
`UNLEASH THE BEAST!
`
`NONE
`
`Class 032. First use: First Use: 2002/04/16 First Use In Commerce: 2002/04/16
`Fruit juice drinks, soft drinks, carbonated soft drinks and soft drinks enhanced
`with vitamins, minerals, nutrients, amino acids and/or herbs,[ aerated water,
`soda water and seltzer water ]
`
`U.S. Registration
`No.
`Registration Date
`
`4482660
`
`02/11/2014
`
`Word Mark
`Design Mark
`
`PUMP UP THE BEAST!
`
`Application Date
`
`05/15/2013
`
`Foreign Priority
`Date
`
`NONE
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 029. First use: First Use: 2013/03/18 First Use In Commerce: 2013/03/18
`Dairy-based beverages; dairy-based energy shakes
`
`U.S. Registration
`No.
`
`4542107
`
`Application Date
`
`05/15/2013
`
`

`

`Registration Date
`
`06/03/2014
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`Design Mark
`
`PUMP UP THE BEAST!
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 030. First use: First Use: 2013/03/18 First Use In Commerce: 2013/03/18
`[ Ready to drink coffee-based beverages; coffee-based shakes for boosting en-
`ergy; ] chocolate-based shakes for boostingenergy; ready to drink chocolate-
`based beverages
`
`U.S. Registration
`No.
`Registration Date
`
`4336329
`
`05/14/2013
`
`Word Mark
`Design Mark
`
`REHAB THE BEAST!
`
`Application Date
`
`11/03/2010
`
`Foreign Priority
`Date
`
`NONE
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 030. First use: First Use: 2011/03/02 First Use In Commerce: 2011/03/02
`Ready to drink tea, iced tea and tea based beverages; ready to drink flavored
`tea, iced tea and tea based beverages
`Class 032. First use: First Use: 2011/03/02 First Use In Commerce: 2011/03/02
`Non-alcoholic beverages, namely, energydrinks, sports drinks and fruit juice
`drinks; all the foregoing enhanced with vitamins, minerals, nutrients, proteins,
`amino acids and/or herbs
`
`U.S. Registration
`No.
`Registration Date
`
`Word Mark
`
`4394044
`
`Application Date
`
`12/14/2010
`
`08/27/2013
`
`Foreign Priority
`Date
`UNLEASH THE NITRO BEAST!
`
`NONE
`
`

`

`Design Mark
`
`Description of
`Mark
`Goods/Services
`
`U.S. Registration
`No.
`Registration Date
`
`Word Mark
`Design Mark
`
`NONE
`
`Class 032. First use: First Use: 2009/07/08 First Use In Commerce: 2009/07/08
`Non-alcoholic beverages, namely, carbonated soft drinks; carbonated drinks en-
`hanced with vitamins, minerals, nutrients,proteins, amino acids and/or herbs;
`carbonated energy or sports drinks
`
`4371544
`
`Application Date
`
`11/19/2012
`
`07/23/2013
`
`Foreign Priority
`Date
`UNLEASH THE ULTRA BEAST!
`
`NONE
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 032. First use: First Use: 2012/08/30 First Use In Commerce: 2012/08/30
`Non-alcoholic beverages, namely, carbonated soft drinks; carbonated drinks en-
`hanced with vitamins, minerals, nutrients,proteins, amino acids and/or herbs;
`carbonated energy drinks and sports drinks
`
`U.S. Registration
`No.
`Registration Date
`
`5402465
`
`02/13/2018
`
`Word Mark
`
`HYDRATE THE BEAST!
`
`Application Date
`
`06/16/2016
`
`Foreign Priority
`Date
`
`NONE
`
`

`

`Design Mark
`
`Description of
`Mark
`Goods/Services
`
`U.S. Registration
`No.
`Registration Date
`
`Word Mark
`Design Mark
`
`NONE
`
`Class 032. First use: First Use: 2017/03/01 First Use In Commerce: 2017/03/01
`Non-alcoholic beverages, namely, energydrinks, soft drinks, sports drinks, and-
`flavored waters; drinking water, namely, water enhanced with vitamins, nutri-
`ents, proteins, and/or amino acids
`
`5622925
`
`Application Date
`
`12/14/2010
`
`12/04/2018
`
`Foreign Priority
`Date
`UNLEASH THE NITRO BEAST!
`
`NONE
`
`Description of
`Mark
`Goods/Services
`
`U.S. Registration
`No.
`Registration Date
`
`Word Mark
`
`NONE
`
`Class 005. First use: First Use: 2009/07/08 First Use In Commerce: 2009/07/08
`Nutritional energy supplements in liquid form; nutritional supplement bever-
`agescontaining vitamins
`
`4030735
`
`Application Date
`
`07/16/2010
`
`09/27/2011
`
`Foreign Priority
`Date
`MONSTER ENERGY EXTRA STRENGTH NITROUS TECHNOLOGY
`
`NONE
`
`

`

`Design Mark
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 005. First use: First Use: 2010/11/00 First Use In Commerce: 2010/11/00
`Nutritional supplements in liquid form
`Class 032. First use: First Use: 2010/11/00 First Use In Commerce: 2010/11/00
`Beverages, namely, carbonated soft drinks; carbonated energy drinks; carbon-
`atedsports drinks; soft drinks, all enhanced with vitamins, minerals, nutrients,
`proteins, amino acids, and/or herbs, but excluding perishable beverage products
`that contain fruit juice or soy, whether such products are pasteurized or not
`
`U.S. Registration
`No.
`Registration Date
`
`Word Mark
`Design Mark
`
`5620922
`
`Application Date
`
`03/14/2018
`
`12/04/2018
`
`Foreign Priority
`Date
`MONSTER MAXX NITROUS TECHNOLOGY
`
`NONE
`
`Description of
`Mark
`Goods/Services
`
`Attachments
`
`NONE
`
`Class 032. First use: First Use: 2018/02/26 First Use In Commerce: 2018/02/26
`Non-alcoholic beverages, namely, soft drinks, energy drinks, and sports drinks
`
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`

`

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`2020-05-19 FINAL NOTICE OF OPPOSITION - 88622348 -
`HANB.11055M.pdf(198112 bytes )
`EX 1 REG NO 4482659 - HANB.11055M.pdf(826227 bytes )
`EX 2 REG NO 4546402 - HANB.11055M.pdf(829421 bytes )
`EX 3 REG NO 5783086 - HANB.11055M.pdf(839824 bytes )
`EX 4 REG NO 5820901 - HANB.11055M.pdf(839401 bytes )
`EX 5 REG NO 5628025 - HANB.11055M.pdf(847973 bytes )
`EX 6 REG NO 2769364 - HANB.11055M.pdf(818921 bytes )
`EX 7 REG NO 4482660 - HANB.11055M.pdf(824607 bytes )
`EX 8 REG NO 4542107 - HANB.11055M.pdf(828321 bytes )
`EX 9 REG NO 4336329 - HANB.11055M.pdf(836378 bytes )
`EX 10 REG NO 4394044 - HANB.11055M.pdf(830451 bytes )
`EX 11 REG NO 4371544 - HANB.11055M.pdf(828935 bytes )
`EX 12 REG NO 5402465 - HANB.11055M.pdf(840609 bytes )
`EX 13 REG NO 5622925 - HANB.11055M.pdf(845998 bytes )
`EX 14 REG NO 4030735 - HANB.11055M.pdf(852553 bytes )
`EX 15 REG NO 5620922 - HANB.11055M.pdf(851549 bytes )
`
`Signature
`Name
`Date
`
`/Ari Feinstein/
`Ari Feinstein
`05/19/2020
`
`

`

`HANB.11055M
`
`
`TRADEMARK
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`Opposition No.: ___________
`
`
`Serial No.: 88/622348
`
`Mark: NITRO-BEAST
`
`
`
`
`
`) ) ) ) ) ) ) ) ) ) )
`
`
`
`
`MONSTER ENERGY COMPANY,
`
`Opposer,
`
`
`
`v.
`
`
`
`
`
`NITRO-BEAST LLC,
`
`
`
`Applicant.
`
`
`
`
`NOTICE OF OPPOSITION
`
`
`Commissioner for Trademarks
`P.O. Box 1451
`Alexandria, VA 22313-1451
`
`Dear Commissioner:
`
`
`
`Monster Energy Company, a Delaware corporation, located and doing business at 1
`
`Monster Way, Corona, California 92879, (“Opposer”) believes that it will be damaged by
`
`registration of U.S. Trademark Application Serial No. 88/622348 (the “Application”) for the
`
`mark NITRO-BEAST (“Applicant’s Mark”) filed by Nitro-Beast LLC (“Applicant”), and
`
`therefore opposes the same.
`
`
`
`As grounds for the opposition, it is alleged:
`
`1.
`
`By the Application filed on September 18, 2019, Applicant seeks to obtain a
`
`registration on the Principal Register for the trademark NITRO-BEAST for “dietary supplement
`
`drink mixes; dietary supplements; dietary and nutritional supplements; nutritional supplements;
`
`-1-
`
`

`

`powdered nutritional supplement drink mix” in International Class 5 based on Applicant’s alleged
`
`intent to use Applicant’s Mark in interstate commerce.
`
`2.
`
`Since at least 2002, long before the filing date of the Application, Opposer has
`
`been, and still is, engaged in the development, marketing, and sale of beverages, nutritional
`
`supplements, and other products bearing Opposer’s UNLEASH THE BEAST!® mark.
`
`Examples of Opposer’s use of its UNLEASH THE BEAST!® mark are shown below:
`
`
`
`3.
`
`Opposer has expanded its use to include other BEAST-inclusive marks in addition
`
`to its UNLEASH THE BEAST!® mark, including, for example, UNLEASH THE NITRO
`
`BEAST!®, REHAB THE BEAST!®, HYDRATE THE BEAST!®, UNLEASH THE ULTRA
`
`BEAST!®, PUMP UP THE BEAST!®, and UNLEASH THE SALTY BEAST!® (collectively,
`
`the “BEAST-inclusive Marks”) in connection with Opposer’s beverages and nutritional
`
`supplements.
`
`4.
`
`Since at least 2002, Opposer has used its UNLEASH THE BEAST!® mark on
`
`almost all of the cans of its best-selling original Monster Energy® drink and thereafter expanded
`
`-2-
`
`

`

`its use to display the mark on additional beverage and nutritional supplement products. Since at
`
`least 2009, Opposer has used its UNLEASH THE NITRO BEAST!® mark in connection with its
`
`Monster Energy® line of products with nitrous technology. Since at least 2011, Opposer has used
`
`its REHAB THE BEAST!® and REHAB THE BEAST! WWW.MONSTERENERGY.COM®
`
`marks in connection with its line of Monster Rehab® line of drinks. Since at least 2013, Opposer
`
`has used its UNLEASH THE ULTRA BEAST!® mark in connection with its Monster Energy
`
`Ultra® line of drinks. Since at least 2013, Opposer has used its PUMP UP THE BEAST!® mark in
`
`connection with its Muscle Monster® line of products. Since at least 2017, Opposer has used its
`
`HYDRATE THE BEAST!® mark in connection with its Monster Hydro® line of products. Since
`
`at least 2018, Opposer has used its UNLEASH THE SALTY BEAST!® mark in connection with
`
`its Juice Monster® (Pacific Punch) drink.
`
`5.
`
`Since at least before the filing date of the Application, Opposer’s BEAST-
`
`inclusive Marks have been and continue to be the subject of substantial and continuous
`
`marketing and promotion by Opposer in connection with its beverages, nutritional supplements,
`
`and other products. Opposer has and continues to widely market and promote its BEAST-
`
`inclusive Marks to consumers by, for example, displaying one or more of the BEAST-inclusive
`
`Marks on merchandise and product samplings, extensively on billions of cans of beverages and
`
`nutritional supplements; on promotional and point of sale materials; in magazines and other
`
`industry publications; on the monsterenergy.com website, monsterarmy.com website, and other
`
`Internet websites, and social media sites; through the sponsorship of sports events and athletes;
`
`and at trade shows, concert tours, and other live events.
`
`6.
`
`By virtue of Opposer’s continuous and substantial use, Opposer’s BEAST-inclusive
`
`Marks have developed into well-known identifiers of Opposer and its goods and services. As a
`
`-3-
`
`

`

`result, Opposer has built up, at great expense and effort, valuable goodwill in its BEAST-inclusive
`
`Marks and has developed strong common law rights in Opposer’s BEAST-inclusive Marks.
`
`Opposer relies on its common law rights in its BEAST-inclusive Marks, which rights predate the
`
`filing date of the Application.
`
`7.
`
`Additionally, since at least 2009, long before the filing date of the Application,
`
`Opposer has been, and still is, engaged in the development, marketing, and/or sale of beverages
`
`and nutritional supplements under marks containing the terms NITRO or NITROUS. Like
`
`Applicant’s NITRO-BEAST mark, Opposer’s UNLEASH THE NITRO BEAST!® mark
`
`includes “NITRO BEAST”. Other marks containing the terms NITRO or NITROUS used by
`
`Opposer include MONSTER ENERGY EXTRA STRENGTH NITROUS TECHNOLOGY®
`
`and MONSTER MAXX NITROUS TECHNOLOGY® (collectively, the “NITRO Marks”).
`
`Opposer uses or has used the UNLEASH THE NITRO BEAST!® mark in connection with its
`
`MONSTER ENERGY EXTRA STRENGTH NITROUS TECHNOLOGY® and MONSTER
`
`MAXX NITROUS TECHNOLOGY® beverages, including displaying the UNLEASH THE
`
`NITRO BEAST!® on the beverage containers. An example of a MONSTER MAXX® product
`
`container displaying the MONSTER MAXX NITROUS TECHNOLOGY® and the UNLEASH
`
`THE NITRO BEAST!® mark is shown below.
`
`
`
`
`
`-4-
`
`

`

`
`
`
`
`
`
`
`
`8.
`
`Since at least before the filing date of the Application, Opposer has continuously
`
`used and promoted its NITRO Marks. Opposer’s NITRO Marks are the subject of substantial
`
`marketing and promotion by Opposer in connection with its nutritional supplements and
`
`beverages. Opposer has and continues to widely market and promote its NITRO Marks in the
`
`industry and to consumers by, for example, displaying the marks extensively on cans of
`
`beverages; on the monsterenergy.com website; and other Internet websites and social media
`
`sites. By virtue of Opposer’s continuous and substantial use, Opposer has built up, at great expense
`
`and effort, valuable goodwill in its NITRO Marks and has developed strong common law rights in
`
`the marks. Opposer relies on its common law rights in its NITRO Marks, which rights predate
`
`the filing date of the Application.
`
`-5-
`
`

`

`9.
`
`In addition to its common law rights, Opposer owns and relies on incontestable
`
`U.S. Trademark Registration No. 4,482,659 (the “’659 Registration”) for the mark PUMP UP
`
`THE BEAST!® for “nutritional supplements in liquid form; vitamin fortified beverages” in
`
`International Class 5, which registration issued February 11, 2014 and is based on an application
`
`filed in the United States Patent and Trademark Office (“PTO”) on May 15, 2013. The filing date
`
`of Opposer’s ’659 Registration is prior to the filing date of the Application. True and correct
`
`copies of the specifics of Opposer’s ’659 Registration obtained from the PTO’s TESS and
`
`Assignment databases are attached hereto as Exhibit 1 and made of record.
`
`10.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
`
`4,546,402 (the “’402 Registration”) for the mark PUMP UP THE BEAST!® for “non-alcoholic
`
`beverages, namely, non-alcoholic and non-carbonated drinks enhanced with vitamins, minerals,
`
`nutrients, proteins, amino acids and/or herbs; non-carbonated energy or sports drinks” in
`
`International Class 32, which registration issued June 10, 2014 and is based on an application filed
`
`in the PTO on May 15, 2013. The filing date of Opposer’s ’402 Registration is prior to the filing
`
`date of the Application. True and correct copies of the specifics of Opposer’s ’402 Registration
`
`obtained from the PTO’s TESS and Assignment databases are attached hereto as Exhibit 2 and
`
`made of record.
`
`11.
`
`Opposer owns and relies on U.S. Trademark Registration No. 5,783,086 (the “’086
`
`Registration”) for the mark UNLEASH THE SALTY BEAST!® for “non-alcoholic beverages,
`
`namely, energy drinks, soft drinks, sports drinks, and fruit juice drinks” in International Class 32,
`
`which registration issued June 18, 2019 and is based on an application filed in the PTO on April 13,
`
`2018. The filing date of Opposer’s ’086 Registration is prior to the filing date of the Application.
`
`
`
`-6-
`
`

`

`True and correct copies of the specifics of Opposer’s ’086 Registration obtained from the PTO’s
`
`TESS and Assignment databases are attached hereto as Exhibit 3 and made of record.
`
`12.
`
`Opposer owns and relies on U.S. Trademark Registration No. 5,820,901 (the “’901
`
`Registration”) for the mark UNLEASH THE BEAST!® for “nutritional supplements in liquid
`
`form” in International Class 5, “furniture; chairs; gaming chair” in International Class 20, and “bar
`
`services; café services; mobile restaurant services; restaurant services; mobile café services for
`
`providing food and drink” in International Class 43, which registration issued July 30, 2019 and is
`
`based on an application filed in the PTO on January 16, 2019. The filing date of Opposer’s ’901
`
`Registration is prior to the filing date of the Application. True and correct copies of the specifics of
`
`Opposer’s ’901 Registration obtained from the PTO’s TESS and Assignment databases are attached
`
`hereto as Exhibit 4 and made of record.
`
`13.
`
`Opposer owns and relies on U.S. Trademark Registration No. 5,628,025 (the “’025
`
`Registration”) for the mark REHAB THE BEAST!® for “ nutritional energy supplements in liquid
`
`form; nutritional supplement beverages containing vitamins” in International Class 5, which
`
`registration issued December 11, 2018 and is based on an application filed in the PTO on November
`
`3, 2010. The filing date of Opposer’s ’025 Registration is prior to the filing date of the Application.
`
`True and correct copies of the specifics of Opposer’s ’025 Registration obtained from the PTO’s
`
`TESS and Assignment databases are attached hereto as Exhibit 5 and made of record.
`
`14.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
`
`2,769,364 (the “’364 Registration”) for the mark UNLEASH THE BEAST!® for “fruit juice
`
`drinks, soft drinks, carbonated soft drinks and soft drinks enhanced with vitamins, minerals,
`
`nutrients, amino acids and/or herbs” in International Class 32, which registration issued September
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`30, 2003 and is based on an application filed in the PTO on December 18, 2002. The filing date of
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`-7-
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`Opposer’s ’364 Registration is prior to the filing date of the Application. True and correct copies
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`of the specifics of the ’364 Registration obtained from the PTO’s TESS and Assignment
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`databases are attached hereto as Exhibit 6 and made of record.
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`15.
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`Opposer owns and relies on incontestable U.S. Trademark Registration No.
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`4,482,660 (the “’660 Registration”) for the mark PUMP UP THE BEAST!® for “dairy-based
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`beverages; dairy-based energy shakes” in International Class 29, which registration issued
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`February 11, 2014 and is based on an application filed in the PTO on May 15, 2013. The filing
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`date of Opposer’s ’660 Registration is prior to the filing date of the Application. True and correct
`
`copies of the specifics of Opposer’s ’660 Registration obtained from the PTO’s TESS and
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`Assignment databases are attached hereto as Exhibit 7 and made of record.
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`16.
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`Opposer owns and relies on incontestable U.S. Trademark Registration No.
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`4,542,107 (the “’107 Registration”) for the mark PUMP UP THE BEAST!® for “chocolate-
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`based shakes for boosting energy; ready to drink chocolate-based beverages” in International
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`Class 30, which registration issued June 3, 2014 and is based on an application filed in the PTO on
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`May 15, 2013. The filing date of Opposer’s ’107 Registration is prior to the filing date of the
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`Application. True and correct copies of the specifics of Opposer’s ’107 Registration obtained
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`from the PTO’s TESS and Assignment databases are attached hereto as Exhibit 8 and made of
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`record.
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`17.
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`Opposer owns and relies on incontestable U.S. Trademark Registration No.
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`4,336,329 (the “’329 Registration”) for the mark REHAB THE BEAST!® for “ready to drink
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`tea, iced tea and tea based beverages; ready to drink flavored tea, iced tea and tea based
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`beverages” in International Class 30 and “non-alcoholic beverages, namely, energy drinks, sports
`
`drinks and fruit juice drinks; all the foregoing enhanced with vitamins, minerals, nutrients,
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`-8-
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`proteins, amino acids and/or herbs” in International Class 32, which registration issued May 14,
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`2013 and is based on an application filed in the PTO on November 3, 2010. The filing date of
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`Opposer’s ’329 Registration is prior to the filing date of the Application. True and correct copies
`
`of the specifics of Opposer’s ’329 Registration obtained from the PTO’s TESS and Assignment
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`databases are attached hereto as Exhibit 9 and made of record.
`
`18.
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`Opposer owns and relies on incontestable U.S. Trademark Registration No.
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`4,394,044 (the “’044 Registration”) for the mark UNLEASH THE NITRO BEAST!® for “non-
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`alcoholic beverages, namely, carbonated soft drinks; carbonated drinks enhanced with vitamins,
`
`minerals, nutrients, proteins, amino acids and/or herbs; carbonated energy or sports drinks” in
`
`International Class 32, which registration issued August 27, 2013 and is based on an application
`
`filed in the PTO on December 14, 2010. The filing date of Opposer’s ’044 Registration is prior to
`
`the filing date of the Application. True and correct copies of the specifics of the ’044
`
`Registration obtained from the PTO’s TESS and Assignment databases are attached hereto as
`
`Exhibit 10 and made of record.
`
`19.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
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`4,371,544 (the “’544 Registration”) for the mark UNLEASH THE ULTRA BEAST!® for “non-
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`alcoholic beverages, namely, carbonated soft drinks; carbonated drinks enhanced with vitamins,
`
`minerals, nutrients, proteins, amino acids and/or herbs; carbonated energy drinks and sports
`
`drinks” in International Class 32, which registration issued July 23, 2013 and is based on an
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`application filed in the PTO on November 19, 2012. The filing date of Opposer’s ’544
`
`Registration is prior to the filing date of the Application. True and correct copies of the specifics
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`of Opposer’s ’544 Registration obtained from the PTO’s TESS and Assignment databases are
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`attached hereto as Exhibit 11 and made of record.
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`20.
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`Opposer owns and relies on U.S. Trademark Registration No. 5,402,465 (the “’465
`
`Registration”) for the mark HYDRATE THE BEAST!® for “non-alcoholic beverages, namely,
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`energy drinks, soft drinks, sports drinks, and flavored waters; drinking water, namely, water
`
`enhanced with vitamins, nutrients, proteins, and/or amino acids” in International Class 32, which
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`registration issued February 13, 2018 and is based on an application filed in the PTO on June 16,
`
`2016. The filing date of Opposer’s ’465 Registration is prior to the filing date of the Application.
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`True and correct copies of the specifics of Opposer’s ’465 Registration obtained from the PTO’s
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`TESS and Assignment databases are attached hereto Exhibit 12 and made of record.
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`21.
`
`Opposer owns and relies on U.S. Trademark Registration No. 5,622,925 (the
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`“’925 Registration”) for the mark UNLEASH THE NITRO BEAST!® for “nutritional energy
`
`supplements in liquid form; nutritional supplement beverages containing vitamins” in
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`International Class 5, which registration issued on December 4, 2018 and is based on an
`
`application filed in the PTO on December 14, 2010. The filing date of Opposer’s ’925
`
`Registration is prior to the filing date of the Application. True and correct copies of the specifics
`
`of the ’925 Registration obtained from the PTO’s TESS and Assignment databases are attached
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`hereto as Exhibit 13 and made of record.
`
`22.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
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`4,030,735
`
`(the “’735 Registration”)
`
`for
`
`the mark MONSTER ENERGY EXTRA
`
`STRENGTH NITROUS TECHNOLOGY® for “nutritional supplements in liquid form” in
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`International Class 5 and for “beverages, namely, carbonated soft drinks; carbonated energy
`
`drinks; carbonated sports drinks; soft drinks, all enhanced with vitamins, minerals, nutrients,
`
`proteins, amino acids, and/or herbs, but excluding perishable beverage products that contain fruit
`
`juice or soy, whether such products are pasteurized or not” in International Class 32, which
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`-10-
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`registration issued on September 27, 2011 and is based on an application filed in the PTO on July
`
`16, 2010. The filing date of Opposer’s ’735 Registration is prior to the filing date of the
`
`Application. True and correct copies of the specifics of the ’735 Registration obtained from the
`
`PTO’s TESS and Assignment databases are attached hereto as Exhibit 14 and made of record.
`
`23.
`
`Opposer owns and relies on U.S. Trademark Registration No. 5,620,922 (the
`
`“’922 Registration”) for the mark MONSTER MAXX NITROUS TECHNOLOGY® for “non-
`
`alcoholic beverages, namely, soft drinks, energy drinks, and sports drinks” in International Class
`
`32, which registration issued on December 4, 2018 and is based on an application filed in the
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`PTO on March 14, 2018. The filing date of Opposer’s ’922 Registration is prior to the filing date
`
`of the Application. True and correct copies of the specifics of the ’922 Registration obtained
`
`from the PTO’s TESS and Assignment databases are attached hereto as Exhibit 15 and made of
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`record.
`
`24.
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`Opposer’s foregoing registrations are valid, subsisting, unrevoked and uncancelled;
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`as such they constitute prima facie evidence of (i) the validity of the registered marks and of the
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`registrations thereof, (ii) Opposer’s ownership of the marks shown therein, and (iii) Opposer’s
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`exclusive right to use the registered marks on the goods set forth in the registrations. Opposer’s
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`registrations also constitute notice to Applicant of Opposer’s claim of ownership of the marks
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`shown therein as provided in Sections 7(b), 22, and 33(a) of the Trademark Act.
`
`25.
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`Opposer’s ’659, ’402, ’364, ’660, ’107, ’329,’044, ’544, and ’735 Registrations are
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`incontestable. As such, each constitutes conclusive evidence of the validity of the registered mark
`
`and of the registration of the mark, of Opposer’s ownership of its mark, and of Opposer’s exclusive
`
`right to use the registered mark in commerce as provided in Section 33 of the Lanham Act, 15
`
`U.S.C. § 1115.
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`-11-
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`26.
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`Since at least before the filing date of the Application, Opposer has continuously
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`used and promoted its BEAST-inclusive Marks and its NITRO Marks, including the marks listed
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`above, in interstate commerce in connection with its goods, including the goods identified in such
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`Registrations. In addition, the marks were well established and well known long before Applicant
`
`filed its Application for registration of Applicant’s Mark.
`
`27.
`
`Applicant seeks an unrestricted federal registration for Applicant’s Mark covering
`
`the goods set forth in the Application in Class 5. As such, if registration issues for the
`
`Application, such registration will constitute prima facie evidence of the Applicant’s exclusive
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`right to use the registered mark in commerce on or in connection with the listed goods
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`throughout the United States with no limitation thereon.
`
`28.
`
`Opposer will be damaged by the registration of the Application in that Applicant’s
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`Mark so resembles Opposer’s marks identified above, including as registered in the PTO, and in
`
`which Opposer owns common law trademark rights, as to be likely, when used on or in connection
`
`with the goods as they are identified in the Application, as to cause confusion, or to cause mistake or
`
`to deceive within the meaning of Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d).
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`29.
`
`In view of Opposer’s prior rights in its marks, Applicant is not entitled to federal
`
`registration of Applicant’s Mark pursuant to Section 2(d) of the Trademark Act, 15 U.S.C.
`
`§ 1052(d).
`
`
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`WHEREFORE, Opposer prays that U.S. Trademark Application Serial No. 88/622348 be
`
`rejected and stricken, that no registration be issued thereon to Applicant, and that this opposition
`
`be sustained in favor of Opposer.
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`-12-
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`Please charge Deposit Account No. 11-1410 to cover the opposition fee and any additional
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`fees which may be required, or credit any overpayment to this account.
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`Dated: May 19, 2020
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`32615317
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`Respectfully submitted,
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`KNOBBE, MARTENS, OLSON & BEAR, LLP
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`
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`By: /Ari Feinstein/
`
`Steven J. Nataupsky
` Matthew S. Bellinger
` Nicole R. Townes
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`2040 Main Street, Fourteenth Floor
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`Irvine, CA 92614
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`(949) 760-0404
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`efiling@knobbe.com
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`
` Aryeh Feinstein
`
`1717 Pennsylvania Ave. N.W., Ste. 900
` Washington D.C. 20006
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`(202) 640-6400
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`efiling@knobbe.com
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`Attorneys for Opposer,
`MONSTER ENERGY COMPANY
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`-13-
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`

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`TTAB Opposition No.: ___________
`Monster Energy Company v. Nitro-Beast LLC
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`EXHIBIT 1
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`
`
`Notice of Opposition
`Serial No.: 88/622348
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`

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`TTAB Opposition No.: ___________
`Monster Energy Company v. Nitro-Beast LLC
`Trademark Electronic Search System (TESS)
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`
`Word Mark
`
`Goods and
`Services
`
`Standard
`Characters
`Claimed
`
`Mark Drawing
`Code
`
`Serial Number
`
`Filing Date
`
`Current Basis
`
`Original Filing
`Basis
`
`Published for
`Opposition
`
`PUMP UP THE BEAST!
`IC 005. US 006 018 044 046 051 052. G & S: Nutritional supplements in liquid form; vitamin fortified beverages.
`FIRST USE: 20130318. FIRST USE IN COMMERCE: 20130318
`
`(4) STANDARD CHARACTER MARK
`
`85933255
`May 15, 2013
`1A
`
`1B
`
`August 27, 2013
`
`4482659
`
`Owner
`
`Registration
`Number
`Registration Date February 11, 2014
`(REGISTRANT) Monster Energy Compan