Ninth Circuit Rules "Freek" Energy Drinks Do Not Infringe On The Trade Dress of "Monster" Energy Drinks

Case: Hansen Beverage Company v. National Beverage Corp., et al., Case No. 06-56390 (9th Cir. 2007)

The One Sentence Summary: The Ninth Circuit reverses the district court's preliminary injunction restraining National Beverage Corporation, the maker of "Freek" energy drinks, because the district court abused its discretion in concluding that Hansen Beverage Company, the maker of "Monster" energy drinks, is likely to succeed on its trade dress claim.


What They Were Fighting About: Hansen, the maker of "Monster" energy drinks, sought to enjoin National's "Freek" energy drinks. Like the "Monster" drinks, "Freek" line of beverages featured a dark background and a bold accent color.

Ninth Circuit Holdings:

• The District Court's finding of similarity of appearance is clearly erroneous. The two products are distinguishable in appearance: both prominently feature their own trade names on the package ("Monster," with a prominent "M," as compared to "Freek").
• While the two trade dresses may be similar in overall appearance because they feature "aggressive" graphics and bold accent colors against dark backgrounds, these elements are used by other makers of energy drinks. Confusion between any two in a "crowd"of "similar marks on similar goods" is unlikely.
• The Ninth Circuit rejects Hansen's argument that confusion is likely because the terms "monster" and "freek" are confusingly similar in meaning. The word "monster" is too indefinite and generalized.
• The Ninth Circuit rejects Hansen's additional argument that confusion is likely because the depiction of the freek on the "Freek" energy drinks (the "Freek Man") is the picture equivalent of a monster. The word mark "MONSTER" is too broad and ambiguous and consumers are not likely to equate it with any particular image, such as the image of the Freek Man on the competing drink.
• The Ninth Circuit is unpersuaded by the handful of declarations, some by Hansen employees, regarding actual confusion. In the Court's view, the declarations do not constitute reliable evidence that Freek's trade dress is likely to confuse "an appreciable number of people."