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Ninth Circuit Reverses Finding that FREEK Infringes MONSTER Drink's Trade Dress

On June 29, the Ninth Circuit reversed the Central District of California’s injunction against the defendant soft drink maker in Hansen Beverage Co. v. National Beverage Corp. that had enjoined defendants from selling or marketing their FREEK line of energy drinks.

Hansen produces and markets the MONSTER ENERGY line of energy drinks, each packaged in containers bearing a large clawed-out “M” and the word “MONSTER.” Each variety uses a distinct color combination that generally consists of a dark background and one bold accent color unique to the variety.

In August 2006, National began selling its line of FREEK energy drinks in the Detroit area. Like MONSTER drinks, the FREEK line of beverages consists of four flavor varieties, each packaged in containers featuring a dark background and one of four distinctive accent colors. Unlike the MONSTER drinks, however, FREEK’s packaging prominently features the word “FREEK” written in a unique, stylized font and the distorted image of an evil-looking creature’s face.


Confusingly similar? The Subject Energy Drinks

Soon after National began distributing its product, Hansen filed suit under Section 43 of the Lanham Act, alleging that National’s FREEK line of energy drinks infringes the trade dress of Hansen’s MONSTER drinks. The Central District found National’s FREEK trade dress was indeed confusingly similar with Hansen’s MONSTER trade dress. Therefore, it granted a preliminary injunction prohibiting National from “manufacturing, distributing, shipping, advertising, marketing, promoting, selling, or offering to sell the Freek energy drinks in containers the same or similar to their current containers or any containers confusingly similar to Plaintiff’s current Monster trade dress.”

In a published decision, the Ninth Circuit found the Central District’s finding of likelihood of confusion was clearly erroneous and reversed. It concluded: “The two trade dresses are similar in overall appearance only to the extent that they both feature ‘aggressive’ graphics and bold accent colors against dark backgrounds. However, these elements are widely employed in the crowded energy drink market and are therefore, unlikely to lead to confusion as to source.”

It added: “The appearance of the competing trade dress speaks for itself. Monster products are distinguishable from the other energy drinks on the market largely because the word ‘Monster’ and a large ‘M’ are prominently  displayed on the cans. Freek’s trade dress does not feature either of these source-identifying marks; instead, it displays prominently its own trade name (‘Freek’) along with a distinctive depiction of a distorted and frightening face (the so-called ‘Freek Man’). These very significant differences weigh heavily against a finding that consumer confusion is likely to result from the overall look of the packaging.”

The court also rejected Hansen’s argument that the “Freek Man” is the picture equivalent of the word mark “MONSTER,” on the ground that the MONSTER word mark “is so broad and ambiguous that consumers are unlikely to equate it with any particular image or symbol — much less an image as disembodied and stylized as the Freek Man.”

The case cite is Hansen Beverage Co. v. Nat’l Beverage Corp., __ F.3d __, 2007 WL 1859607, No. 06-56390 (9th Cir.).

Thanks to the IP Law Observer for bringing this decision to my attention. (Read IPLO’s summary of the case here.) For some reason, I missed it myself the first time around.

Posted on July 9, 2007 by Registered CommenterMichael Atkins in | CommentsPost a Comment

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