Filewrapper-old

Ninth Circuit: No confusion likely between competing energy drinks, preliminary injunction vacated
June 29, 2007

In a decision today, the Ninth Circuit vacated a preliminary injunction in a lawsuit over the trade dress of two competing energy drinks. The court held the district court's conclusion that success was likely on the merits was clearly erroneous, largely because of the dissimilarity of the two trade dresses.

Hansen produces the Monster line of energy drinks. These beverages are sold in "containers bearing a large clawed-out 'M' and the word 'MONSTER.'" An example is depicted below (from the court's appendix):

Monster can

National Beverage produces a competing line of energy drinks sold under the name "FREEK." Its packaging is depicted below:

Freek can

Applying the Sleekcraft factors (see this post for a list of the factors), the Ninth Circuit held that there was no likelihood of confusion. Specifically, the court noted that the trade dress of the two products was quite dissimilar. Even though both feature "aggressive" graphics and bold accent colors, the court noted that this was common in the energy drink market, and thus was not strong evidence of similarity. Instead, the prominent use of the "M" on the Monster products, contrasted with the prominent use of "FREEK" on the Freek products led the court to the conclusion that the marks were dissimilar. Analysis of the remaining Sleekcraft factors also favored National Beverage, with the exception of evidence of actual confusion. The presence of such evidence gave the court "pause," but ultimately the court held that the affidavits evidencing such actual confusion did not "reliably indicate that Freek's trade dress is likely to confuse an appreciable number of people." This was partially because several of the affidavits submitted as evidence of actual confusion were signed by employees of Hansen. As a result, the limited evidence of actual confusion did not outweigh the dissimilarity of the trade dress (as well as the remaining Sleekcraft factors), and the preliminary injunction was vacated.

To read the full decision in Hansen Beverage Co. v. Nat'l Beverage Corp., click here. For the evidence appendix, click here.

Post has no comments.
Post a Comment




Captcha Image
Return to the Filewrapper Blog
  Newer Posts Older Posts  

Purpose

The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

Disclaimer

McKee, Voorhees & Sease, P.L.C. provides this blog for general informational purposes only. By using this blog, you agree that the information on this blog does not constitute legal or other professional advice and no attorney-client or other relationship is created between you and McKee, Voorhees & Sease, P.L.C. Do not consider this blog to be a substitute for obtaining legal advice from a qualified, licensed attorney. While we try to revise this blog on a regular basis, it may not reflect the most current legal developments. We consciously refrain from expressing opinions on this blog and instead, offer it as a form of information and education, however if there appears an expression of opinion, realize that those views are indicative of the individual and not of the firm as a whole

Connect with MVS

Enter your name and email address to recieve the latest news and updates from us and our attorneys.

Subscribe to: MVS Newsletter

Subscribe to: Filewrapper® Blog Updates

  I have read and agree to the terms and conditions of McKee, Voorhees & Sease, P.L.C.