More thoughts on Rock Art, Monster, Trademarks, and puppies

Sorry, nothing about puppies. Go here to see one.

I figured I’d write a little more on this whole… issue with Rock Art and Monster. My last post was sort of reactionary and heated. This one is more thoughtful, I hope.

Support for Rock Art has been astounding, at least within the craft beer and Twitter realms. There are a lot of different goals out there. Everyone is shouting Boycott Monster very loudly, and honestly, it’s not that hard to do. I prefer coffee. Or Rockstar. Red Bull reminds me of very late nights in college, generally mixed with a deer-blood based liquor.

If we climb up the boycotting tree, I honestly don’t have much issue never buying an A-B product again. In fact, I generally don’t as it is. There are two brands in their portfolio that I would have some issue saying goodbye to: Bass and Boddingtons. But I don’t foresee any problems saying goodbye to Chelada, the combination of Bud Light with the refreshing taste of Clamato, spices and a hint of lime.

Refreshing clam juice and delicious light beer.. mmmm

But I digress. The real goal here, at least in my mind, is to ensure Hansen’s Beverage Company does not pursue legal action again Rock Art Brewery. What’s that? Ensure they don’t pursue? Aren’t they already in a heated, cut throat court battle, likely to grace the nation’s networks any day now? No. There’s not been any lawsuit as of yet. Hansen’s intellectual property lawyers suggested a cease and desist as part of their due diligence to protect the trademark that is Monster Energy. Rock Art said no, we will not cease and desist. Hansen’s now has the option to say “Cool, no worries. Thanks for your timely response. We really enjoy your beer, btw.” The other option is for them to remove their very dirty glove, slap Rock Art in the face with it, and declare a duel. Sadly, it would be like the epic battle between the Canadian and American Air Forces in South Park, the movie. For those not up on that certain pop culture reference, a legal battle between Hansen’s and Rock Art would be like a pea shooter vs. a nuke. So, our goal as craft beer supporters is the former option (“Yo, good beer!”) rather than the latter (“Hey, let’s fight”).

Monster drinking Monster. Whoa.

Now, some might (and have) ask “why?”. That’s good. Getting all up in arms over an issue and not knowing why is a pretty big problem these days. So why are we all so pissed at Hansen’s? They are, in fact, doing their duty in protecting a very expensive trademark. They even sent a cease and desist a real monster!

There are a few reasons as to why we’re all so pissed. First is the issue of brand confusion and dilution. I don’t care what Wal-Mart you go to, no one is going to mistake an oversized can of Monster Energy for a bomber of 10% ABV Vermonster. If anything, this cease and desist has brought Vermonster to the public eye, where before it would have stayed in Vermont. (Yes, I just said Vermont isn’t the public eye. Do you know where Morrisville, VT is? Do you know where VT is?)

Monster Energy is a registered trademark. In fact, their cease and desist lists five marks:

1. Registration No. 3,044,315 for the mark MONSTER ENERGY
2. Registration No. 3,044,314 for the mark M MONSTER ENERGY
3. Registration No. 3,057,061 for the mark MONSTER ENERGY
4. Registration No. 3,134,842 for the mark M MONSTER ENERGY
5. Registration No. 3,134,841 for the mark MONSTER ENERGY and Design

I went to the United States Patent and Trademark Office to take looksie at these marks. Let’s see what I found.

The first two are the same, just for different typed designs. The meat:

IC 005. US 006 018 044 046 051 052. G & S: nutritional supplements in liquid and non-liquid form, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not. FIRST USE: 20020327. FIRST USE IN COMMERCE: 20020418

Nutritional Supplements. Pretty sure beer is a nutritional supplement, right? All jokes aside, there’s not much I can come up with for why a chocolate porter might be sold at your local GNC. Moving on.

IC 032. US 045 046 048. G & S: Fruit juice drinks having a juice content of 50% or less by volume that are shelf stable, carbonated soft drinks, carbonated drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, aerated water, soda water and seltzer water, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not. FIRST USE: 20020327. FIRST USE IN COMMERCE: 20020418

Fruit juice. Yes, some beer has fruit in it. The guy who won this year’s NHC made a Peach Lambic with 15 lbs of fresh peaches. Pulled out 5 gallons after 10 days, 180 days, and 360 days, then blended them. Sounds so good! But I digress.

The last two are also the same, but for different marks:

IC 032. US 045 046 048. G & S: Beverages, namely, carbonated soft drinks, carbonated drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, carbonated and non-carbonated energy or sports drinks, fruit juice drinks having a juice content of 50% or less by volume that are shelf stable, and water, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not. FIRST USE: 20020327. FIRST USE IN COMMERCE: 20020418

This one gets the closest to our industry. But it is still a distant cry from beer. Things like Monster Energy are called soft drinks because they’re not hard drinks. Hard drinks have alcohol. Soft ones do not. Good talk.

But wait! Soft drinks do not have alcohol… What about a non-alcoholic beer? You’re totally right. Here’s Coors’ NA mark (Registration No. 2,335,054):

IC 032. US 045 046 048. G & S: NON-ALCOHOLIC BEER. FIRST USE: 19911001. FIRST USE IN COMMERCE: 19911001

See where it mentions beer, specifically? How about MillerCoors, as a company trademark (Serial No. 77,432,087)

IC 032. US 045 046 048. G & S: Beer; Soft drinks

IC 033. US 047 049. G & S: Alcoholic beverage produced from a brewed malt base with natural flavors

I can keep going. Coors Edge (Registration No. 3,297,189)

IC 032. US 045 046 048. G & S: beer. FIRST USE: 20040601. FIRST USE IN COMMERCE: 20040601

More MillerCoors (Serial No. 77,511,583):

IC 032. US 045 046 048. G & S: Beer

Coors (Registration No. 3,467,665):

IC 032. US 045 046 048. G & S: BEER. FIRST USE: 20060100. FIRST USE IN COMMERCE: 20060100

Just a few more, I promise. Sam Adams (Registration No. 1,987,061):

IC 032. US 045 046 048. G & S: beverages, namely beer and ale. FIRST USE: 19921105. FIRST USE IN COMMERCE: 19940909

New Belgium (Registration No. 3,018,632):

IC 032. US 045 046 048. G & S: FERMENTED MALT BEVERAGES, NAMELY, BEER AND ALE. FIRST USE: 19981200. FIRST USE IN COMMERCE: 19981200

Fat Tire by New Belgium (Registration No. 1,846,908):

IC 032. US 048. G & S: fermented malt beverages; namely, ale. FIRST USE: 19910628. FIRST USE IN COMMERCE: 19920320

Last one. Coca-Cola (Registration No. 3,252,896):

IC 032. US 045 046 048. G & S: Non-alcoholic beverages, namely, soft drinks; and syrups and concentrates for making beverages, namely, soft drinks. FIRST USE: 20021215. FIRST USE IN COMMERCE: 20030101

K I’m done. The point? Beer says beer, non-beer doesn’t. If Monster wants to maintain its trademark across all liquids, cool. But it’s registration is not for all liquids. It can’t tell some laundry detergent to stop being so monstery. It’s also not across all beverages. It’s across soft drinks, sports drinks, energy drinks, etc. But it’s registration does not enter the beer world. Nor should its lawyers.

Now yes, we’re all up in arms because it’s a small company. We love the underdog. It’s true. If MillerCoors put out Monster Ale, we’d expect Hansen’s to sue on the spot. Likewise, if Monster Energy came out with a Vermonster Energy Drink, for all your blue ice days, no one would expect Rock Art to do a thing, because it’s just too expensive. So there’s that argument. That’s the VerPepsi argument. However, Pepsi isn’t a real word. Monster is.

One of the biggest issues I have with all of this is that Rock Art Vermonster isn’t the only Monster or -monster beer on the market. Now, don’t take this the wrong way. I don’t want any brewery to get sued over Hop Ness Monster or This Beer Is An Effing Monster or some other neat name. But the question is, why Rock Art? Why haven’t the other 58 monster named brews gotten a letter? Again, I really don’t want that to happen. But, if Hansen’s is so upset about this one, why have they left the others alone? A Beer Advocate search for *monster* (any names with monster as a whole word) returns 34 results. I’m not smart enough to do a search for words containing monster. Like Vermonster. But that basic search returns things like “Brooklyn Monster Ale” and “New Old Lompoc Monster Mash Porter”. Vermonster isn’t even a real word! Here’s a fun game. Find Monster in this selection. Find Vermonster.

So seriously, Hansen’s. Just drop it.

For continuing coverage on this topic, please bookmark MonsterBoycott.

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