Inspire December 2020
There appears to be a strange connection
between energy drinks and trade mark cases…
6 Frucor Beverages Limited attempted
to register the colour green for
their ‘V’ energy drink. Red Bull
GmbH have opposed numerous
applications for marks incorporating
the words RED or BULL, the device
of a bull, or even the red, blue
and silver of the Red Bull can, and
Monster Energy Company (MEC)
are similarly protective of their
MONSTER trade mark. The latest
entry into this field of energy drink
cases is MEC’s opposition to the
mark MONSTER STRIKE, filed
in the name of Mixi Inc. (Mixi) 1
Mixi publishes downloadable
video games, and applied to
register MONSTER STRIKE in
relation to goods and services
including electronic games and
gaming. Although MEC did not have
registrations of its own mark in
relation to similar goods or services,
it opposed that application on the
basis that its reputation in its family
of MONSTER marks was such that
the use of MONSTER STRIKE by
Mixi would be contrary to law –
because it would be misleading or
deceptive in contravention of the
Australian Consumer Law – or
that use by Mixi on video games
and gaming would be likely to
deceive or confuse in light of MEC’s
reputation in its MONSTER marks.

MEC produced evidence of its
reputation and sales in Australia,
which commenced in 2009. The
word MONSTER was used in a
variety of MEC’s marks, including
MONSTER ENERGY, MONSTER
RIPPER, MONSTER ASSAULT and
Monster Energy Company v Mixi INC [2020] FCA 1398
1 MONSTER KHAOS, although
the latter two marks were not
used in Australia before the
filing date of Mixi’s MONSTER
STRIKE trade mark. The mark is
also used with an ‘M device’ in
which the letter M is represented
by three parallel claw marks.

The evidence showed that over
78 million cans of MONSTER-
branded drinks were sold in
Australia between 2009 and 2013,
primarily through grocery stores,
convenience stores and fuel stations.

MEC argued that although it did not
trade in video games or gaming, it
had heavily promoted its marks to
its target market (said to be young
adults (primarily males) aged between
18 and 34) by associating the mark
with a variety of athlete, gamer and
musician endorsements and by
sponsoring sporting competitions,
including eSports, and music festivals.

eSports are competitive video
gaming events which are streamed
worldwide, with competitors
winning millions in cash prizes.

MEC promoted its MONSTER brand
The Monster
Strikes Back