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.

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