Wed Oct 28, 2009 8:43 am
I am a business attorney, and I deal a fair amount with federal trademarks.
This post is about Vermonster. First, I understand that you wanted to be on the brewer's side, and that is fine. However, you allowed him to use your show to spread disinformation. That is not fine.
Here are the facts, from the TESS server at USPTO.gov.
1. Rock Art's attorney filed application number 77765863 on June 23, 2009.
2. The application was for a "standard character mark" of The Vermonster. That means it wanted to trademark the rights to the entire word, not just a design logo.
3. The application was filed for class 32, which is beer AND soft drinks.
From the TARR server:
4. The application has not been published by the government, that is scheduled for November.
5. The first attorney Rock Art used is a mill in Arizona. That attorney tried to claim the word mark for all class 32, which includes energy drinks.
6. Rock Art’s new attorney, after the fight started, limited the class 32 application to only beer, excluding specifically energy drinks.
From a search on Hansen at USPTO:
7. Hansen has a class 32 on many variants of “Monster†as a wordmark, just not the word Monster itself standing alone.
8. Hansen is applying for even more variants now, and those variants predate Rock Art’s application.
From trademark law:
9. The USPTO does not protect Hansen in the Rock Art application review. This is directly from the USPTO brochure “We do not decide whether you have the right to use a mark.â€
10. Trademark law uses two concepts, likelyhood of confusion, and dilution. Beer and energy drinks are unlikely to be confused, but using Vermonster and Monster for the same class of drinks could be dilution. (Depending on how the new Federal Trademark Dilution Act changes shake out.)
11. If a trademark holder fails to defense it trademark and dilution occuars, other people can start using thetTrademark. In other words, if Vermonster ends up diluting Hansen’s trademark, someone else can start marketing Better Monster Energy Drink.
12. The controlling factor is a law that was radically changed in 2006, and most resulting trademark cases haven’t hit the feeral court of appeals yet so Hansen doesn’t know what its rights are.
Conclusions:
Rock Art kept telling you over and over that since the federal government accepted its application, Hansen should have shut up. That is gross misinformation at best, and more likely it was deliberate misinformation. The government does not protect Hansen’s marks, that is up to Hansen.
Hansen jumped on the problem quickly, in fact even before the Vermonster application was published.
Rock Art hired a mill as their first trademark attorney, who failed to limit the mark to ‘beer only’ in the first application. In other words, Rock Art said in its application that it wanted to own rights to all class 32, including energy drinks. The new attorney fixed that after Hansen sent its letter.
Hansen had to fight, otherwise it could end up losing its rights to Monster Energy drinks, depending on how federal courts publish descisions over the next few years on the massive changes to FTDA.
Rock Art used your show to claim, falsely, that since the government accepted the appication that was all that was needed. Rock Art negliected to inform you that its application included Hansen’s energy drink area—coming close to lying by ommission. Rock Art also neglicted to inform us on the show that the recent trademark law changes could mean that by not fighting it, Hansen could lose their mark for their energy drink. Rock Art neglicted to say on your show that it hired a new and, from what I can tell looking at his website, better IP lawyer to fix the problem that attorney number one caused by applying for a mark for all of class 32.
Your show was used to pass information that not only was one-sided, but bordered on falsehood.
