USA Nutraceuticals Group, Inc. and Ultra-Lab Nutrition, Inc.v.Monster Energy Company

Trademark Trial and Appeal Board

Mar 9, 2017

No. 91202947 (T.T.A.B. Mar. 9, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: March 9, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

USA Nutraceuticals Group, Inc. and
Ultra-Lab Nutrition, Inc.

v.

Monster Energy Company
_____

Opposition No. 91199986
Opposition No. 91202947
Opposition No. 91205388
Opposition No. 91209540
_____

Ryan M. Kaiser of Amin Talati & Upadhye, LLC,
for USA Nutraceuticals Group Inc. and Ultra-Lab Nutrition, Inc.
Matthew S. Bellinger of Knobbe, Martens, Olson & Bear, LLP,
for Monster Energy Company.
_____

Before Zervas, Bergsman and Goodman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Monster Energy Company (“Applicant”) seeks registration on the Principal
Register of the marks listed below:
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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1. UNLEASH THE NITRO BEAST! (standard characters) for “nutritional
supplements,” in Class 5.1
2. REHAB THE BEAST! (standard characters) for “nutritional supplements in
liquid form,” in Class 5.2
3. REHAB THE BEAST! WWW.MONSTERENERGY.COM (standard
characters) for “nutritional supplements in liquid form,” in Class 5.3
4. UNLEASH THE ULTRA BEAST! (standard characters) for “nutritional
supplements in liquid form,” in Class 5.4
In the applications for UNLEASH THE NITRO BEAST! and REHAB THE
BEAST!, Applicant claimed ownership of Registration No. 2769364 for the mark
UNLEASH THE BEAST! (typed drawing) for “fruit juice drinks, soft drinks,
carbonated soft drinks and soft drinks enhanced with vitamins, minerals, nutrients,
amino acids and/or herbs,” in Class 32.5

1 Application Serial No. 85197756 was filed on December 14, 2010, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce. This application is the subject of Opposition No.
91199986.
2 Application Serial No. 85168304 was filed on February 3, 2010, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce. This application is the subject of Opposition No.
91202947.
3 Application Serial No. 85543622 was filed on February 15, 2012, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
first use in commerce since at least as early as March 2, 2011. This application is the subject
of Opposition No. 91205388.
4 Application Serial No. 85783034 was filed on November 19, 2012, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce. This application is the subject of Opposition No.
91209540.
5 Registered on September 30, 2003; renewed.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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In the application for the mark REHAB THE BEAST!
WWW.MONSTERENERGY.COM, Applicant claimed ownership of Registration No.
3353473 for the mark REHAB (standard characters) for “energy drinks, fruit
beverages,” in Class 32.6
USA Nutraceuticals Group Inc. and Ultra-Lab Nutrition, Inc. (“Opposers”) have
opposed the registration of Applicant’s marks under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s marks so resemble Opposers’
BEAST marks used in connection with dietary and nutritional supplements as to be
likely to cause confusion. In their brief, Opposers explain that “[w]hile Opposers have
used and registered numerous BEAST marks over the last twenty years, Opposers’
arguments in [these] proceedings focus on three marks, namely: THE BEAST;7
BEAST8 and UNLEASH THE BEAST9.”10 Accordingly, we will focus our likelihood of
confusion analysis on those three marks. Cf. In re Max Capital Group Ltd.,
93 USPQ2d 1243, 1245 (TTAB 2010) (where multiple marks were cited as a bar to
registration, the Board considered the cited mark most likely to cause confusion).

6 Registered December 11, 2007; Section 8 declaration accepted.
7 Registration No. 2012763 for the mark THE BEAST (typed drawing) for “vitamins and
nutritional food supplements,” in Class 5, registered on October 29, 1996; second renewal.
8 Registration No. 4334953 for the mark BEAST (standard characters) for “dietary and
nutritional supplements,” in Class 5, registered on May 14, 2013.
9 Opposer has not asserted a registration for UNLEASH THE BEAST, but is asserting
common law rights in this mark; “Opposers Ultra-Lab Nutrition, Inc. has used the mark
UNLEASH THE BEAST in connection with the promotion and sale of dietary and nutritional
supplements since at least as early as 2001.” Opposers’ Amended Notice of Opposition ¶10
(15 TTABVUE 9).
10 Opposers’ Brief, p. 22 n.2 (127 TTABVUE 23).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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Applicant, in its Amended Answer, denied the salient allegations in the Notices of
Opposition and pleaded, inter alia, the affirmative defense of laches and that it is the
owner of a registration for substantially similar marks for substantially similar goods
(i.e., Registration No. 2769364 for the mark UNLEASH THE NITRO BEAST! for
“fruit juice drinks, soft drinks, carbonated soft drinks and soft drinks enhanced with
vitamins, minerals, nutrients, amino acids and/or herbs”).11
Proceedings were consolidated in the Board’s July 26, 2012 and June 25, 2013
orders.12
I. Evidentiary Issues
A. The improper designation of confidential testimony.

The parties improperly designated testimony as confidential. For example, in the
discovery deposition transcript of Anthony Altieri, the President of both Opposers,
introduced by Opposers during Opposers’ rebuttal testimony, Opposers improperly
designated as confidential testimony regarding products that consumers have asked
Opposers to produce, whether Opposers have applied to register marks for energy
drinks, references to allegations in the notices of opposition, and products sold by
Opposers.13 We will treat the testimony improperly designated as confidential as
available to the public. See Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC,

11 Because Applicant did not argue either the affirmative defense of laches or the prior
registration affirmative defense in its brief, those affirmative defenses are deemed waived.
Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 n.6 (TTAB
2013). See also footnote 50 for a discussion regarding the prior registration defense.
12 21 TTABVUE and 28 TTABVUE.
13 Altieri Discovery Dep., pp. 45-47 (113 TTABVUE 7).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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110 USPQ2d 1458, 1461 (TTAB 2014) (the Board will not be bound by improper
confidentiality designations); Trademark Rule 2.116(g) (amended effective January
14, 2017 to codify the Board’s practice of treating as public material that cannot
reasonably be considered confidential).
B. Objections
Applicant has lodged numerous objections. None of the evidence sought to be
excluded is outcome determinative. Moreover, the Board is capable of weighing the
relevance and strength or weakness of the objected—to testimony and evidence,
including any inherent limitations. We find no basis on which to strike any testimony
or other evidence. As necessary and appropriate, we will point out any limitations in
the evidence or otherwise note that the evidence cannot be relied upon in the manner
sought. We have considered all of the testimony and evidence introduced into the
record. In doing so, we have kept in mind the various objections raised by Applicant
and we have accorded whatever probative value the subject testimony and evidence
merit.
II. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), Applicant’s application files.
A. Opposers’ testimony and evidence.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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1. Notice of reliance on Opposers’ pleaded registrations printed from the USPTO
TESS database showing the current status and title of the registrations;14
2. Notice of reliance on five pending BEAST formative applications filed by
Opposers;15
3. Notice of reliance on the dictionary definition of the word “Beast”;16
4. Notice of reliance on Applicant’s responses to Opposers’ interrogatory Nos. 6,
7, and 8;17
5. Notice of reliance on advertisements published in magazines in general
circulation displaying Opposers’ UNLEASH THE BEAST mark;18
6. Notice of reliance on advertisements published in magazines in general
circulation displaying Opposers’ BEAST and THE BEAST marks;19
7. Notice of reliance on the discovery deposition transcript of Mark Hall, the
President of the Monster Energy Division of Applicant, with attached
exhibits;20

14 Registration No. 2012763 for the mark THE BEAST is posted at 67 TTABVUE 7 and
Registration No. 4334953 for the mark BEAST is posted at 67 TTABVUE 18.
15 68 TTABVUE. Pending applications are evidence only that the applications were filed on
a certain date; they are not evidence of use of the marks. Nike Inc. v. WNBA Enterprises LLC,
85 USPQ2d 1187, 1193 n.8 (TTAB 2007); Interpayment Services Ltd. v. Docters & Thiede, 66
USPQ2d 1463, 1468 n.6 (TTAB 2003).
16 69 TTABVUE 6.
17 70 TTABVUE.
18 71-83 TTABVUE.
19 84-92 TTABVUE.
20 93 TTABVUE. The portions of the deposition transcript designated as confidential are
posted at 94 TTABVUE.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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a. In rebuttal, Opposers introduced a second notice of reliance on the discovery
deposition of Mark Hall;21
8. Notice of reliance on excerpts from websites displaying Opposers’ marks;22
9. Notice of reliance on excerpts from the Lone Star Distribution website
(lonestardistribution.com) purportedly to show that the company distributes
the products of both parties and excerpts from the BodyBuilding.com website
purportedly to show unsolicited publicity for Opposers’ BEAST brand;23
10. Notice of reliance on the discovery deposition transcript of Rodney Sacks,
Applicant’s Chairman and Chief Executive Officer, with attached exhibits;24
a. In rebuttal, Opposers introduced a second notice of reliance on the discovery
deposition of Mr. Sacks with attached exhibits;25
11. Notice of reliance on official records purportedly related to Opposers
trademark enforcement activities;26
12. The testimony deposition transcript of Anthony Altieri, President of both
Opposers, with attached exhibits;27 and

21 111 TTABVUE. The portions of the deposition transcript designed as confidential are
posted at 110 TTABVUE.
22 95 TTABVUE.
23 96 TTABVUE.
24 99 TTABVUE. The portions of the deposition transcript designated as confidential are
posted at 97 TTABVUE.
25 109 TTABVUE. The portions of the deposition transcript designated as confidential are
posted at 108 TTABVUE.
26 98 TTABVUE.
27 115 TTABVUE.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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13. Notice of reliance on third-party websites purportedly to rebut Applicant’s
evidence regarding third-party use of the word “Beast”;28
B. Applicant’s testimony and evidence.
1. Applicant’s notice of reliance on Applicant’s registrations consisting in part of
the word “Beast” printed from the USPTO’s electronic database showing the
current status of and title to the following registrations:
a. Registration No. 4371544 for the mark UNLEASH THE ULTRA
BEAST! (standard characters) for, inter alia, “carbonated drinks
enhanced with vitamins, minerals, nutrients, protein, amino acids
and/or herbs,” in Class 32;29
b. Registration No. 4482659 for the mark PUMP UP THE BEAST!
(standard characters) for “nutritional supplements in liquid form;
vitamin fortified beverages,” in Class 5;30
c. Registration No. 4482660 for the mark PUMP UP THE BEAST!
(standard characters) for “dairy-based beverages; dairy-based energy
shakes,” in Class 29;31
d. Registration No. 4542107 for the mark PUMP UP THE BEAST!
(standard characters) for “ready to drink coffee-based beverages; coffee-

28 112 TTABVUE.
29 105 TTABVUE 36.
30 105 TTABVUE 42.
31 105 TTABVUE 48.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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based shakes for boosting energy; chocolate-based shakes for boosting
energy, read to drink chocolate-based beverages,” in Class 30;32
e. Registration No. 4546402 for the mark PUMP UP THE BEAST!
(standard characters) for “non-alcoholic beverages, namely, non-
alcoholic and non-carbonated drinks enhanced with vitamins, minerals,
nutrients, proteins, amino acids and/or herbs; non-carbonated energy or
sports drinks,” in Class 32;33
f. Registration No. 4292502 for the mark REHAB THE BEAST!
WWW.MONSTERENERGY.COM for, inter alia, “non-alcoholic
beverages, namely, energy drinks, sports drinks and fruit juice drinks,
all of the foregoing enhanced with vitamins, minerals, nutrients,
proteins, amino acids and/or herbs,” in Class 32;34
g. Registration No. 4394044 for the mark UNLEASH THE NITRO BEAST!
(standard characters) for, inter alia, “carbonated soft drinks enhanced
with vitamins, minerals, nutrients, proteins, amino acids and/or herbs,”
in Class 32;35
h. Registration No. 4336329 for the mark REHAB THE BEAST! (standard
characters) for, inter alia, “non-alcoholic beverages, namely, energy
drinks, sports drinks and fruit juices, all of the foregoing enhanced with

32 105 TTABVUE 54.
33 105 TTABVUE 60.
34 105 TTABVUE 66.
35 105 TTABVUE 71.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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vitamins, minerals, nutrients, proteins, amino acids and/or herbs,” in
Class 32;36 and
i. Registration No. 2769364 for the mark UNLEASH THE BEAST! (typed
drawing) for “fruit juice drinks, soft drinks, carbonated soft drinks and
soft drinks enhanced with vitamins, minerals, nutrients, amino acids
and/or herbs,” in Class 32;37
2. Notice of reliance on articles published in magazines in general circulation
referring to Applicant and its UNLEASH THE BEAST mark;38
3. Notice of reliance on articles published in newspapers referring to the word
“Beast” purportedly to show the meaning of that word in connection with sports
and physical activities;39
4. Notice of reliance on excerpts from Applicant’s website displaying Applicant’s
products;40
5. Notice of reliance on excerpts from Applicant’s website MonsterArmy.com and
Applicant’s Twitter page (twitter.com/monsterenergy.com) purportedly to
show the absence of confusion between Opposers’ mark and Applicant’s marks
and purportedly to show the renown of Applicant’s marks;41

36 105 TTABVUE 76.
37 105 TTABVUE 81.
38 105 TTABVUE 152-194.
39 105 TTABVUE 196-375.
40 105 TTABVUE 377-489.
41 105 TTABVUE 491-779.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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6. Notice of reliance on excerpts from social media websites displaying or
referring to Applicant’s marks or products;42
7. Notice of reliance on excerpts from Opposers’ websites published on Wayback
website (http://web.archive.org) purportedly to show the lack of use of
Opposers’ marks.43
8. Notice of reliance on Opposers’ responses to Applicant’s interrogatory Nos. 2
and 16 (Opposition No. 91202947), interrogatory No. 1 (Opposition No.
91205388) and interrogatory Nos. 2-7, 14-18 (Opposition No. 91199986);44
9. Notice of reliance on excerpts from the discovery deposition transcript of
Anthony Altieri, the President of both Opposers, with attached exhibits;45
a. In rebuttal, Opposers introduced excerpts from the discovery deposition
transcript of Anthony Altieri which Opposers contend should in fairness
be considered so as to make not misleading what was introduced by
Applicant. Trademark Rule 2.120(k)(4), 37 C.F.R. § 2.120(k)(4);46
10. Testimony deposition of Robert Klein, Applicant’s consumer survey expert,
with attached exhibits;47

42 105 TTABVUE 781-790.
43 105 TTABVUE 792-856.
44 106 TTABVUE. The portions of Opposers’ responses to Applicant’s interrogatories
designated as confidential are posted at 107 TTABVUE.
45 106 TTABVUE 39. The portions of the Altieri deposition transcript designated as
confidential are posted at 107 TTABVUE.
46 114 TTABVUE. The portions of the Altieri deposition transcript designated as confidential
are posted at 113 TTABVUE.
47 123 TTABVUE.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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11. Testimony deposition of Norman Broadhurst, Applicant’s marketing expert,
with attached exhibits;48 and
12. Testimony deposition of Rodney Sacks, Applicant’s Chairman and Chief
Executive Officer, with attached exhibits.49
III. Standing
Because Opposers have properly made their existing pleaded registrations of
record, Opposers established their standing in this proceeding. Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Industries,
Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).50
IV. Priority
A. Pleaded Registrations
Because Opposers have properly made of record their pleaded registrations, and
because Applicant has not filed a counterclaim to cancel any of Opposers’ pleaded

48 121 TTABVUE.
49 128 TTABVUE. The portions of the Sacks deposition transcript designated as confidential
are posted at 125 TTABVUE.
50 As noted above, Applicant introduced copies of Registration No. 4394044 for the mark
UNLEASH THE NITRO BEAST!, Registration No. 4336329 for the mark REHAB THE
BEAST!, Registration No. 4292502 for the mark REHAB THE BEAST!
WWW.MONSTERENERGY.COM, and Registration No. 4371544 for the mark UNLEASH
THE ULTRA BEAST! for drinks enhanced with vitamins, minerals, nutrients, proteins,
amino acids or herbs, in Class 32, as well as testimony regarding the identity of those goods
and nutritional supplements. Because Applicant did not plead that those registrations form
the basis of the prior registration (or Morehouse) defense and because the prior registration
defense was not tried by implied consent (e.g., Applicant did not refer to the prior registration
defense in its brief), we do not consider that affirmative defense. See Productos Lacteos
Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1926 (TTAB 2011).
We consider Applicant’s above-noted registrations for whatever probative value they have
vis-à-vis our likelihood of confusion analysis. See footnote 11.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 13 -
registrations, Section 2(d) priority is not an issue in the oppositions as to the marks
and the goods covered by the pleaded registrations. King Candy Co. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974).
B. Common Law Use of UNLEASH THE BEAST!
Anthony Altieri, the President of both Opposers, testified that Opposers have used
the mark UNLEASH THE BEAST! since March 2001 to advertise their THE BEAST
products, and that they also have used that mark on t-shirts and temporary tattoos.51
Opposers introduced excerpts from the May 2001 issues of Flex Magazine and Iron
Man Magazine to corroborate the testimony of Mr. Altieri regarding their first use of
UNLEASH THE BEAST!52 The advertisement in both magazines is the same and is
shown below. Opposers submitted additional magazine advertisements which have a
format or layout similar to the advertisement in the May 2001 issues of Flex Magazine
and Iron Man Magazine.53

51 Altieri Testimony Dep., pp. 65 (115 TTABVUE 68).
52 72 TTABVUE 2-13.
53 72-83 TTABVUE.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 15 -
The use of UNLEASH THE BEAST in the advertisements does not constitute
technical trademark use because it is used as an advertising slogan. See In re
Morganroth, 208 USPQ 284, 287 (TTAB 1980) (even though a slogan is used in the
sale or advertising of goods, “it is not registrable unless it is used as a mark, namely,
in a manner clearly calculated to project to purchasers or prospective purchasers
encountering the notation in question in the applicable marketplace environment a
single source or origin of the goods or services in question.”).
This necessitates a determination as to whether it is used
and provided in such a manner so as both to make it known
to purchasers and to have such individuals associate it
with the goods as an identification symbol.
Id. at 288; see also In re Phoseon Tech. Inc., 103 USPQ2d 1822, 1827 (TTAB 2012)
(the issue in determining whether the subject matter at issue functions as a
trademark is the commercial impression it makes on the relevant public); In re
Roberts, 87 USPQ2d 1474, 1478 (TTAB 2008). Even assuming that Opposers intended
to use UNLEASH THE BEAST as a trademark, Opposers’ intent is not conclusive
evidence that Opposers were actually using UNLEASH THE BEAST as a mark. See
Nextel Commc’n Inc. v. Motorola Inc., 91 USPQ2d 1393, 1406 (TTAB 2009); In re
Morganroth, 208 USPQ at 287 (the mere intent that a word or slogan function as a
mark is not enough in and of itself).54

54 We assume that the federal registration symbol appearing after “The Beast” refers to
Opposers’ Registration No. 2012763 for the mark THE BEAST (typed drawing) for “vitamins
and nutritional food supplements,” in Class 5, registered on October 29, 1996.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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UNLEASH THE BEAST as used in the advertisement is an exhortation to use
Opposers’ THE BEAST brand nutritional supplements. The distributors and toll free
telephone number at the bottom of the advertisement directs interested consumers
to where they may purchase THE BEAST supplements displayed in the bottles in the
center of the advertisement. In other words, Opposers are advertising THE BEAST
nutritional supplements, not UNLEASH THE BEAST brand nutritional
supplements.55
Although Opposers contend that they have used UNLEASH THE BEAST! in a
manner analogous to trademark use,56 they did not use UNLEASH THE BEAST! as
a technical trademark (e.g., on a product label) prior to 2013.57 Under the theory of
analogous use, a party may rely upon pre-sale activities in order to “tack on” non-
trademark usage for purposes of establishing priority under Section 2(d). See
3 McCarthy on Trademarks and Unfair Competition § 20:16 (4th ed. 2017).
Although use analogous to trademark use is sufficient to create a proprietary right in
the user for purposes of a likelihood of confusion claim, analogous use must be more
than mere advertising. The Court of Appeals for the Federal Circuit summarized the
test for the sufficiency of analogous use efforts:
[W]hether it was sufficiently clear, widespread and
repetitive to create the required association in the minds of

55 See also Altieri Testimony Dep. Exhibits 24 -25 (116 TTABVUE 36-38) which are excerpts
from Opposers’ website on March 31, 2001 (Exhibits 24 and 25) and July 20, 2002 (Exhibit
25). Although the websites display UNLEASH THE BEAST as a tagline under THE BEAST
trademark, UNLEASH THE BEAST is used an exhortation to purchase Opposers’ products,
not as a trademark.
56 Opposers’ Brief, p. 22 (127 TTABVUE 23).
57 Altieri Testimony Dep., p. 232 (115 TTABVUE 208).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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the potential purchasers between the mark as an indicator
of a particular source and the [product or] service to become
available later.
T.A.B. Sys. v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, (Fed. Cir. 1996). The
analogous trademark use also must be shown to have a substantial impact on the
purchasing public, and the user must establish an intent to appropriate the mark. Id.
In addition, the “tacking” theory under which use analogous to trademark use
operates requires that actual technical trademark use must follow within a
commercially reasonable period of time. See Westrex Corp. v. New Sensor Corp.,
83 USPQ2d 1215, 1218 (TTAB 2007) (11 years of pre-sales activities before the first
sale of a product under the designation as a trademark is not a commercially
reasonable period of time); Dyneer Corp. v. Automotive Prod. plc, 37 USPQ2d 1251,
1256 (TTAB 1995) (use analogous to trademark use can create priority but “actual,
technical trademark use must follow the use analogous to trademark use within a
commercially reasonable period of time”); Evans Chemetics, Inc. v. Chemetics Int’l
Ltd., 207 USPQ 695, 700 (TTAB 1980) (plaintiff must have made actual use of the
trademark in commerce “soon enough after the initial advertising campaign to
preclude a finding that the advertising was merely an attempt to preempt a mark for
use at an indefinite future date.”).
The 12 years between Opposers’ analogous trademark use of UNLEASH THE
BEAST (March 2001) and their technical trademark use (2013) is not a reasonably
commercial period of time to permit Opposers to tack their analogous trademark use
back to a 2001 priority date. Accordingly, for purposes of priority, Opposers’ first use
of UNLEASH THE BEAST is no earlier than 2013.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 18 -
Applicant filed its applications on February 3, 2010, December 14, 2010, February
15, 2012 and November 19, 2012. The filing date of the applications constitute
constructive use of the marks, contingent upon registration, conferring a right of
priority, nationwide in effect, on or in connection with the goods specified in the
applications. Section 7(c) of the Trademark Act, 15 U.S.C. § 1057(c). Thus, Applicant
may rely on the filing dates of its applications to establish its priority dates. Zirco
Corp. v. Am. Tel. and Tel. Co., 21 USPQ2d 1542, 1544 (TTAB 1991) (“there can be no
doubt but that the right to rely upon the constructive use date comes into existence
with the filing of the intent-to-use application and that an intent-to-use applicant can
rely upon this date in an opposition brought by a third party asserting common law
rights.”).
Opposers failed to prove that they made prior use of UNLEASH THE BEAST and,
therefore, we dismiss the oppositions with respect to Opposers’ likelihood of confusion
claims associated with UNLEASH THE BEAST.
We proceed to analyze Opposers’ likelihood of confusion claims based on its
ownership and use of the registered marks THE BEAST for “vitamins and nutritional
food supplements” and BEAST for “dietary and nutritional supplements.”
V. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973) (“du Pont”) (cited in B&B Hardware, Inc. v. Hargis
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 19 -
Ind., Inc., 135 S.Ct. 1293, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each du Pont factor that is relevant and for which there is evidence of
record. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944,
1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232,
1242 (TTAB 2015) (“While we have considered each factor for which we have
evidence, we focus our analysis on those factors we find to be relevant.”). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods and/or services. See In re Chatam
Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.”); see also
In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015).
A. The similarity or dissimilarity and nature of the goods and established, likely-
to-continue channels of trade.

Applicant is seeking to register its marks for “nutritional supplements” and
“nutritional supplements in liquid form.” Opposers have registered THE BEAST for
“vitamins and nutritional food supplements” and BEAST for “dietary and nutritional
supplements.” The descriptions of goods are essentially identical.
Because the goods described in the applications and Opposers’ registrations are
identical, we must presume that the channels of trade and classes of purchasers are
the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 20 -
2012) (legally identical goods are presumed to travel in same channels of trade to
same class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ
721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade
and classes of purchasers are considered to be the same); United Global Media Grp.,
Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); American Lebanese Syrian
Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022, 1028
(TTAB 2011).58
B. The strength of Opposers’ marks, including the number and nature of similar
marks in use in connection with similar goods

In determining the strength of a mark, we consider both its inherent strength
based on the nature of the mark itself and its commercial strength, based on the
marketplace recognition value of the mark. See In re Chippendales USA, Inc., 622
F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark's strength is measured
both by its conceptual strength (distinctiveness) and its marketplace strength
(secondary meaning).”) Top Tobacco, L.P. v. North Atlantic Operating Co., Inc., 101
USPQ2d 1163, 1171-72 (TTAB 2011) (same); Tea Board of India v. Republic of Tea

58 The evidence introduced by Applicant regarding the differences in parties’ channels of trade
discussed below in the analysis of whether there has been a reasonable opportunity for
confusion to have occurred does not rebut the presumption that the parties identical goods
move in the same channels of trade and are sold to the same classes of consumers because
Applicant’s description of goods is not restricted to any specific channels of trade or classes
of consumers and Applicant could change or expand its channels of trade at any time. See
CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983) (“The description of
the goods in an application for registration is critical because any registration that issues will
carry that description. Moreover, although a registrant's current business practices may be
quite narrow, they may change at any time from, for example, industrial sales to individual
consumer sales.). In this regard, Applicant “tr[ies] and sell the product wherever it can be
sold.” Sacks Testimony Dep., p. 120 (128 TTABVUE 125).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 21 -
Inc., 80 USPQ2d 1881, 1899 (TTAB 2006); McCarthy on Trademarks and Unfair
Competition § 11:83 (“The first enquiry focuses on the inherent potential of the term
at the time of its first use. The second evaluates the actual customer recognition value
of the mark at the time registration is sought or at the time the mark is asserted in
litigation to prevent another's use.”). Market strength is the extent to which the
relevant public recognizes a mark as denoting a single source. Tea Board of India v.
Republic of Tea Inc., 80 USPQ2d at 1899. In other words, it is similar to acquired
distinctiveness.
In addition, the sixth du Pont factor requires us to consider evidence pertaining
to the number and nature of similar marks in use on similar goods. “The purpose of
a defendant introducing third-party uses is to show that customers have become so
conditioned by a plethora of such similar marks that customers ‘have been educated
to distinguish between different such marks on the bases of minute distinctions.’”
Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005), quoting Veuve Clicquot Ponsardin v.
Palm Bay Imports, Inc., Opp'n No. 115,438, 2000 WL 21953664 (TTAB Aug. 4, 2003).
With respect to the commercial strength of Opposers’ marks THE BEAST and
BEAST, Opposers’ “print advertisements appear in publications with nationwide
circulation and which are targeted to fitness and weightlifting consumers” (e.g.,
MuscleMag, Muscle & Fitness, Muscular Development, etc.).59 Opposers also market

59 Opposers’ Brief, p. 34 (127 TTABVUE 35 and 71-92 TTABVUE); see also Opposers’ response
to Applicant’s interrogatory No. 16 (106 TTABVUE 14).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 22 -
their products through social media, such as Facebook, Twitter, and YouTube and at
sports nutrition and fitness industry trade shows (e.g., the Arnold Fitness Expo,
Europa and the L.A. Fit Expo).60 At the time of his deposition, Mr. Altieri testified
that Opposers’ Facebook page has 463,329 likes.61 Mr. Altieri also testified under seal
as to his companies’ revenues.62 While Opposers appear to have a successful business,
because Opposers did not include any testimony regarding its market share or how
Opposers’ sales compare with those of their competitors, we have no basis for
assessing how Opposers’ sales and advertising reflect the commercial strength of its
marks. While the products identified by Opposers’ THE BEAST and BEAST marks
are commercially successful, the evidence does not support a finding that those marks
are well-known.
Opposers contend that “Applicant’s survey expert opined that Opposers’ BEAST
marks are ‘widely recognized’ in the nutritional supplements category.”63 However,
Applicant’s survey expert, Robert Klein, testified that based on “the Notice of
Opposition and the responses to interrogatories that Beast Sports was a well-known
mark within the nutritional supplements area or market.”64 In Opposition No.

60 Altieri Testimony Dep., pp. 119-120 and 128-132 (115 TTABVUE 122-123 and 130-134).
61 Altieri Testimony Dep., p. 129 (115 TTABVUE 131). In contrast, Applicant’s Facebook page
for Monster Energy had 23 million likes in 2013. Sacks Testimony Dep., p. 102 (128
TTABVUE 107).
62 Altieri Testimony Dep., p. 152 (120 TTABVUE 28). In contrast, Applicant’s sales of
products bearing “Beast” marks are almost 100 times greater than Opposers’ sales. Sacks
Testimony Dep., p. 50 (128 TTABVUE 55).
63 Opposers’ Brief, p. 34 (127 TTABVUE 35).
64 Klein Testimony Dep., p. 16 (123 TTABVUE 20); see also Klein Testimony Dep., pp. 82-83
(123 TTABVUE 86-87).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 23 -
91205388 (REHAB THE BEAST! WWW.MONSTERENERGY.COM), Opposers
alleged that “[c]onsumers have come to recognize products advertised and sold under
Opposers’ BEAST marks by the common ‘BEAST’ portion of their name, as being
related and coming from a common source, Opposers.”65 In Opposers’ response to
Applicant’s interrogatory No. 1, Opposers’ stated that “Opposers’ BEAST marks are
well-known in the nutritional supplements industry.”66 Mr. Klein did not conduct any
independent research to ascertain the renown of Opposers’ marks.67 Mr. Klein relied
on Opposers’ assertions to justify his reliance on an Eveready survey format which
Mr. Klein testified requires Opposers’ marks to be well-known.68 We are not
persuaded by Mr. Klein’s reliance on Opposers’ self-serving statements that their
marks are well-known. The Board is responsible for making its own findings of facts,
and we will not substitute an opinion of a witness, even an expert witness, for our
evaluation of the facts. See Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d
1399, 1402 (TTAB 2010); Fisons Ltd. v. UAD Laboratories, Inc., 219 USPQ 661, 663
(TTAB 1983).
With respect to the conceptual strength of Opposers’ marks, we note that a “Beast”
is defined as “any nonhuman animal, especially a large, four-footed mammal.”69

65 Klein Testimony Dep. Exhibit 1, Notice of Opposition ¶12 (123 TTABVUE 145 at 150).
Applicant denied the allegations in paragraph No. 12 in the Notice of Opposition. (Opposition
No. 91205388 at 5 TTABVUE 4).
66 Klein Testimony Dep. Exhibit 6 (123 TTABVUE 180 at 182).
67 Klein Testimony Dep., p. 83 (123 TTABVUE 87).
68 Klein Testimony Dep., p. 17 (123 TTABVUE 21).
69 Dictionary.com based on the Random House Dictionary (2017). The Board may take
judicial notice of dictionary definitions, including online dictionaries that exist in printed
format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 24 -
Applicant introduced 56 articles from newspapers and magazines referring to the
word “Beast” or “Beast Mode” to describe aggressive, high-intensity athletic
performance.70 These articles were published between 2002 and 2013. The excerpts
from the articles listed below are representative.
• Tri-Valley Herald (Pleasantville, California) (June 24, 2002)71
El Cerrito’s Gooden ready to hear name called on draft day.
* * *
“They [now] seem to realize I’m not soft. I have that dog in
me. I let the beast out in my workouts. They saw the whole
package.”
• Orlando Sentinel (Florida) (April 14, 2012)72
Shipman eager to again put aggressive foot forward
UCF linebacker Ray Shipman was a beast on the football
field his freshman year in high school, dishing out
punishing hits.
* * *
After making the dramatic decision to leave the Florida
Gators basketball team and transfer to UCF to play
football two years ago, Shipman has worked hard to get
back into beast mode. The 6-foot-5, 242-pound athlete has
a much stronger understanding of the Knights’ defense and
is ready to throw his weight around.

594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v. Metronome Enters. Inc.,
96 USPQ2d 1031, 1038 n.14 (TTAB 2010). See also Merriam-Webster.com (69 TTABVUE 6).
70 105 TTABVUE 196-375. Norman Broadhurst, Applicant’s expert marketing witness,
characterized the articles as showing the word “Beast” used to describe aggressive activities
of either amateur or professional sports figures. Broadhurst Testimony Dep., p. 16 (121
TTABVUE 20).
71 105 TTABVUE 300.
72 105 TTABVUE 303.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 25 -
• Saint Paul Pioneer Press (Minnesota) (April 27, 2003)73
For New Dolphin Seau, Failure Is Not An Option
* * *
“Since this whole thing began, [Junior] has been working
out like a beast,” Montamble says. “You guys are gonna see
it. There’s a thing in football called ‘hell week.’ Junior has
had his own ‘hell month.’”
We agree with Norman Broadhurst that the articles demonstrate that “Beast” is
used “by a large number of different people in sports - - reporters, coaches and
athletes - - to describe the intense behavior or over-the-top activity of the sports
figures.”74 Opposers adopted this meaning with their advertising tagline UNLEASH
THE BEAST discussed above. So did the third-party users of Beast marks for
nutritional supplements.75 For example,
• Flex Fitness Products advertises and sells BEAST anabolic stack.76 The label
has the tagline “Unleash what’s inside” under the trademark BEAST;

73 105 TTABVUE 292.
74 Broadhurst Testimony Dep., p. 17 (121 TTABVUE 21).
75 Opposers contend that Applicant’s evidence regarding third-party use is not credible
because, in part, it is based on inadmissible hearsay via an expert report. Opposers’ Brief,
p. 38 (127 TTABVUE 39). Applicant introduced the testimony deposition of Norman
Broadhurst, a marketing expert, and his expert report, including evidence of third-party use.
Opposers cross-examined Mr. Broadhurst. Mr. Broadhurst’s testimony is not hearsay and the
third-party use evidence is credible.
Nevertheless, the probative weight of the third-party use is limited given that the record is
devoid of any corroborating facts bearing on the extent of these uses. That is to say, there are
no specifics regarding the extent of sales or promotional efforts surrounding the third-party
uses and, thus, what impact, if any, these uses have made in the minds of the purchasing
public is unclear.
76 Broadhurst Testimony Dep. Exhibit 8C.1(a) (121 TTABVUE 471-472). Mr. Broadhurst
purchased this product in November 2013. Broadhurst Testimony Dep., p. 75 (121 TTABVUE
78).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 26 -
• Rok Hard Body advertises and sells Beast Mode pre-workout supplement;77
• Muscle Pharm advertises and sells Assault pre-performance amplifier using the
advertising tagline “Train Like an Unchained Beast”;78
• Shoxx Fitness Products advertises and sells BEAST anabolic stack;79
• Iron Horse Supplements advertises B.E.A.S.T. Supa-Halo halodrol stack and
B.E.A.S.T. EPI-18 Epistane;80 and
• Supplement Source.CA advertises Blue Beast Labs pre-workout supplement.81
Likewise, Applicant’s various “Beast” marks engender the commercial impression
of impressive behavior, performance, or over-the-top activity.82 Rodney Sacks,
Applicant’s Chairman and Chief Executive Officer, specifically testified that
Applicant uses “Unleash the Beast” “and then a whole family of ‘Unleash the Beast’

77 Broadhurst Testimony Dep. Exhibit 8C.1(d) (121 TTABVUE 477-479). Mr. Broadhurst
purchased this product in November 2013. Broadhurst Testimony Dep., p. 79 (121 TTABVUE
83).
78 Broadhurst Testimony Dep. Exhibit 8C.1(k) (121 TTABVUE 487-488). Mr. Broadhurst
purchased this product in November 2013. Broadhurst Testimony Dep., p. 86-87 (121
TTABVUE 90-91).
79 Broadhurst Testimony Dep. Exhibit 8C.1(l) (121 TTABVUE 489-490). Mr. Broadhurst
purchased this product in November 2013. Broadhurst Testimony Dep., p. 88 (121 TTABVUE
92).
80 Broadhurst Testimony Dep. Exhibits 8C.1(b) and (c) (121 TTABVUE 473-476). When Mr.
Broadhurst purchased the products in November 2013, the products were labeled as E.A.S.T.
rather than B.E.A.S.T. Broadhurst Testimony Dep., pp. 76 and 78 (121 TTABVUE 80 and
82).
81 Broadhurst Testimony Dep., Exhibit 8C.1(n) (121 TTABVUE 492). We recognize that
Supplement Source.CA is a Canadian company and that the witness did not purchase the
product.
82 Rodney Sacks testified that “[t]he theme is that you unleash you[r] inner self. It’s sort of a
general feeling that goes with the saying.” Sacks Discovery Dep., p. 28 (99 TTABVUE 19); see
also Sacks Discovery Dep., p. 44 (99 TTABVUE 31) (“It’s a state of mind. Unleash your inner
self. … It’s a saying that is aggressive … It is a composite saying of just let yourself go, let
yourself get out.”).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 27 -
marks, which are listed here, the ‘Nitro Beast,’ the ‘Rehab the Beast,’ “Unleash the
Ultra Beast’” on the product cans.83
We use the “Unleash the Nitro Beast” in connection with
our Extra Strength Nitrous Technology line. We use
“Rehab the Beast” and “Rehab the Beast
www.monsterenergy.com” in connection with our full
Rehab line, all of our sublines under the Monster brand
and part of the Monster brand. We use “Unleash the Ultra
Beast” as part of our Ultra line, again, of drinks. And then
the most recent one is our Unleaded product, which is a
caffeine-free product where we use the “Unleash the
Caffeine-Free Beast” in connection with that line.84
As noted above, Applicant is the owner of the following registrations that include
the word “Beast”:
• Registration No. 4371544 for the mark UNLEASH THE ULTRA BEAST! for,
inter alia, “carbonated drinks enhanced with vitamins, minerals, nutrients, protein,
amino acids and/or herbs,” in Class 32;
• Registration No. 4482659 for the mark PUMP UP THE BEAST! for “nutritional
supplements in liquid form; vitamin fortified beverages,” in Class 5;
• Registration No. 4546402 for the mark PUMP UP THE BEAST! for “non-
alcoholic beverages, namely, non-alcoholic and non-carbonated drinks enhanced with
vitamins, minerals, nutrients, proteins, amino acids and/or herbs; non-carbonated
energy or sports drinks,” in Class 32;
• Registration No. 4292502 for the mark REHAB THE BEAST!
WWW.MONSTERENERGY.COM for, inter alia, “non-alcoholic beverages, namely,

83 Sacks Testimony Dep., pp. 12-13 (128 TTABVUE 17-18).
84 Sacks Testimony Dep., p. 13 (128 TTABVUE 18).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 28 -
energy drinks, sports drinks and fruit juice drinks, all of the foregoing enhanced with
vitamins, minerals, nutrients, proteins, amino acids and/or herbs,” in Class 32.
• Registration No. 4394044 for the mark UNLEASH THE NITRO BEAST! for,
inter alia, “carbonated soft drinks enhanced with vitamins, minerals, nutrients,
proteins, amino acids and/or herbs,” in Class 32;
• Registration No. 4336329 for the mark REHAB THE BEAST! for, inter alia,
“non-alcoholic beverages, namely, energy drinks, sports drinks and fruit juices, all of
the foregoing enhanced with vitamins, minerals, nutrients, proteins, amino acids
and/or herbs,” in Class 32; and
• Registration No. 2769364 for the mark UNLEASH THE BEAST! for “fruit juice
drinks, soft drinks, carbonated soft drinks and soft drinks enhanced with vitamins,
minerals, nutrients, amino acids and/or herbs,” in Class 32.85
Applicant’s drinks “enhanced with vitamins, minerals, nutrients, amino acids
and/or herbs” are very similar, if not identical, to nutritional supplements.86
Nutritional supplement, in foods, any vitamin or
mineral added during processing to improve nutritive
value and sometimes to provide specific nutrients in which
populations are deficient. Flour and bread products are
often enriched with iron and the B vitamins thiamin,
riboflavin, and niacin; and citrus-fruit beverages, naturally
containing vitamin C, may be fortified with additional
vitamin C units. Addition of iodine to salt has eliminated

85 105 TTABVUE 81.
86 The classification of goods by the USPTO is a purely administrative determination and has
no bearing on the issue of likelihood of confusion. Jean Patou Inc. v. Theon Inc., 9 F.3d 971,
29 USPQ2d 1771, 1773 (Fed. Cir. 1993); National Football League v. Jasper Alliance Corp.,
16 USPQ2d 1212, 1216 n.5 (TTAB 1990); see also 37 C.F.R. § 2.85(f) (“Classification schedules
shall not limit or extend the applicant's rights.”).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 29 -
goiter in some areas in which it was formerly common; and
vitamin D may be added to baby foods to combat rickets.87
Anthony Altieri, the President of both Opposers, testified that the term nutritional
supplement is a vague term that could encompass many products.88 Cf. In re Hughes
Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly
worded identification of ‘furniture’ necessarily encompasses Registrant’s narrowly
identified ‘residential and commercial furniture.’”).
Rodney Sacks, Applicant’s Chairman and Chief Executive Officer, testified that
its MONSTER energy drinks are both enhanced beverages and nutritional
supplements.
The product meets the definition of a dietary supplement
and meets the definition of DSHEA [Dietary Supplement
Health and Education Act of 1994]. The product also falls
within the definition of a beverage, and it can be marketed
as a beverage because it contains ingredients that are
GRAS [generally recognized as safe].89
* * *
We marketed our product as a beverage. It’s in a can, you
drink it. It’s labeled as a supplement because we believe it
was properly labeled as a supplement because it contains

87 Encyclopaedia Britannica (1998). The Board may take judicial notice of information
from encyclopedias. B.V.D. Licensing Corp. v. Body Action Design Inc., 846 F.2d 727,
6 USPQ2d 1719, 1721 (Fed. Cir. 1988) (“dictionaries and encyclopedias may be consulted”);
Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921,
1934 n.61 (TTAB 2011); In re Broyhill Furniture Industries Inc., 60 USPQ2d 1511, 1514 n.4
(TTAB 2001) (dictionary entries and other standard reference works).
88 Altieri Testimony Dep., pp. 213-214 (115 TTABVUE 189-190). Mr. Altieri further testified
that “[m]y definition of a nutritional supplement is something that a person would take into
their body for a specific purpose.” Id. at 212-213 (115 TTABVUE 188-189).
89 Sacks Discovery Dep., p. 19 (99 TTABVUE 14).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 30 -
supplements that are intended to supplement the diet. It is
also a beverage and can be drunk as a beverage.90
The evidence introduced by Applicant does not rise to the level of demonstrating
that third-party use of the term “Beast” is so widespread as to “condition” the
consuming public, such that customers are so used to seeing marks containing the
term “Beast” for nutritional supplements that such use undermines the strength of
Opposers’ marks THE BEAST and BEAST. However, the suggestive nature of “Beast”
(i.e., referring to impressive performance) means that Opposers’ marks are not
entitled to such a broad scope of protection that they will bar the registration of every
mark comprising, in whole or in part, the word “Beast.” It will bar the registration of
marks “as to which the resemblance to [Opposers’ marks] is striking enough to cause
one seeing it to assume that there is some connection, association or sponsorship
between the two.” Anthony's Pizza & Pasta Int’l Inc. v. Anthony's Pizza Holding Co.,
95 USPQ2d 1271, 1278 (TTAB 2009), aff’d, 415 Fed. Appx. 222 (Fed. Cir. 2010)
(quoting Pizza Inn, Inc. v. Russo, 221 USPQ 281, 283 (TTAB 1983)).
C. The nature and extent of any actual confusion.
Applicant is not aware of any reported instances of confusion,91 and Opposers have
failed to introduce any credible evidence of actual confusion.92 The absence of any

90 Sacks Discovery Dep., p. 159 (99 TTABVUE 68). See also Applicant’s response to Opposers’
interrogatory Nos. 10, 12 and 13 (99 TTABVUE 131-134).
91 Sacks Discovery Dep., p. 136 (109 TTABVUE 31); Sacks Testimony Dep., pp. 26, 38, 40, 41,
44 (128 TTABVUE 21, 42, 44, 45, 48).
92 Opposers’ response to Applicant’s interrogatory No. 2 (106 TTABVUE 26-27) (“consumers
and other individuals who have seen Applicant’s advertisements containing the term BEAST
have asked Opposers whether there is an affiliation between the companies.”) and
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 31 -
reported instances of confusion is meaningful only if the record supports appreciable
and continuous use by Applicant of its marks for a significant period of time in the
same markets as those served by Opposers under their marks. In other words, for the
absence of actual confusion to be probative, there must have been a reasonable
opportunity for confusion to have occurred. Citigroup Inc. v. Capital City Bank Group
Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d Citigroup Inc. v. Capital City Bank
Group Inc., 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011); Barbara's Bakery Inc.
v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value of the
absence of actual confusion depends upon there being a significant opportunity for
actual confusion to have occurred); Red Carpet Corp. v. Johnstown American
Enterprises Inc., 7 USPQ2d 1404, 1406-1407 (TTAB 1988); Central Soya Co., Inc. v.
North American Plant Breeders, 212 USPQ 37, 48 (TTAB 1981) (“the absence of actual
confusion over a reasonable period of time might well suggest that the likelihood of
confusion is only a remote possibility with little probability of occurring”).
The table below identifies circumstances relevant to whether the opportunity for
confusion to have occurred.

interrogatory No. 3 (106 TTABVUE 27) (Opposers failed to identify any persons who reported
an instance of confusion and any person who received the reported instance of confusion).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 32 -
Circumstances for
confusion to occur
Opposers Applicant

Simultaneous use THE BEAST (1996)93

UNLEASH THE
BEAST! (2001)
(advertising)94
UNLEASH THE BEAST!
(2002);95

REHAB THE BEAST! and
REHAB THE BEAST!
WWW.MONSTERENERGY.COM
(2011);96

UNLEASH THE ULTRA BEAST!
(2012);97

UNLEASH THE NITRO BEAST!
(2009).98

Use of mark Primary product
mark
Tagline appearing on the back of
cans99

Used on cans and point of sale
displays in close proximity to the
MONSTER house mark100

93 Altieri Testimony Dep., pp. 14, 18, 20, 38 (115 TTABVUE 17, 21, 23, 41).
94 Altieri Testimony Dep., pp. 37, 65, 233 (115 TTABVUE 40, 68, 209).
95 Sacks Testimony Dep., pp. 12, 14-15 (128 TTABVUE 17, 19-20); Sacks Discovery Dep., p. 27
(109 TTABVUE 18).
96 Sacks Testimony Dep., p. 29 (128 TTABVUE 34).
97 Sacks Testimony Dep. pp. 30-31 (128 TTABVUE 35-36).
98 Sacks Testimony Dep., pp. 32-33 (128 TTABVUE 37-38).
99 Sacks Discovery Dep., pp. 30, 39, 46 (99 TTABVUE 21, 28, 33); Hall Discovery Dep., p. 39
(115 TTABVUE 23); Sacks Testimony Dep., p. 13 (128 TTABVUE 18).
100 Hall Discovery Dep., p. 73 (93 TTABVUE 42).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 33 -
Circumstances for
confusion to occur
Opposers Applicant

Renown Successful product
but no evidence the
marks are well-
known
Extensive sales by any standard;
but the renown of the “Beast”
tagline is unclear.101

Demographic Male and females
ages 18-34102
Originally males between the ages
of 18-34; has expanded to females,
as well as persons outside that age
group103

Channels of trade GNC, Vitamin World,
Vitamin Shoppe,
Nutrition Depot, Hi-
Health, Europa, and
gyms/fitness
centers104
Applicant’s energy drinks are sold
in over 300,000 retail stores,
including convenience stores, gas
stations, drugstores, club stores,
mass merchandising stores, and
independent stores105

Inconsequential sales volume to
health clubs and vitamin stores 106

101 Hall Confidential Discovery Dep., p. 107 (94 TTABVUE 67) (there is no way to attribute
sales to the tagline). This part of Mr. Hall’s testimony was improperly designated confidential
and we do not treat it as such.
102 Altieri Testimony Dep., p. 134 (115 TTABVUE 136).
103 Applicant’s response to Opposers’ interrogatory No. 6 (70 TTABVUE 16); Hall Discovery
Dep., p. 114 (93 TTABVUE 72) (skews male); Sacks Discovery Dep. pp. 114, 194-95 (97
TTABVUE 50, 70); Sacks Testimony Dep., p. 46 (128 TTABVUE 50).
104 Altieri Testimony Dep., p. 113 (115 TTABVUE 116); Altieri Discovery Dep., pp. 26-27 (107
TTABVUE 16-17); Opposers’ response to Applicant’s interrogatory No. 6 (106 TTABVUE 15).
105 Applicant’s response to Opposers’ interrogatory No. 6 (70 TTABVUE 16); Hall Confidential
Discovery Dep., pp. 119-120 (94 TTABVUE 75-76) (a substantial percentage of Applicant’s
sales are in convenience stores and gas stations and the other primary trade channel is
grocery stores, mass merchandisers, club stores and drug stores); Sacks Confidential
Discovery Dep., pp. 114, 199, 204 (97 TTABVUE 50, 75, 83) (a substantial percentage of
Applicant’s sales are in convenience stores and gas stations and the second largest percentage
of sales are to mass merchandisers); Sacks Discovery Dep., Applicant’s Response to Opposers’
interrogatory No. 6 (99 TTABVUE 127); Sacks Testimony Dep., p. 45 (128 TTABVUE 50).
106 Hall Confidential Discovery Dep., p. 121 (94 TTABVUE 76); Sacks Confidential Discovery
Dep., p. 200 (97 TTABVUE 76); Sacks Testimony Dep, p. 120 (128 TTABVUE 125)
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 34 -
Circumstances for
confusion to occur
Opposers Applicant

Advertising/
Marketing
Muscle/fitness
magazines107

Fitness,
bodybuilding, and
food nutrition
shows108

Sponsors
bodybuilders, bikini
competitors,
endurance athletes,
and physique
models109
No print or television
advertising110

National Association of
Convenience Stores trade show
and the FMI food service show111

No sponsorships or events
involving bodybuilders or
weightlifters;112 Sponsorships
primarily at X-games, skiing,
snowboarding, Motocross, car
racing events113

(Applicant’s products may be sold in health clubs and supplement stores but that is not
Applicant’s “primary demographic or consumer”).
107 Altieri Testimony Dep., p. 39 (115 TTABVUE 42); 71-92 TTABVUE (e.g., Flex Magazine,
Iron Man Magazine, Muscular Development Magazine, etc.); Opposers’ response to
Applicant’s interrogatory No. 6 (106 TTABVUE 14).
108 Altieri Testimony Dep., p. 119 (115 TTABVUE 122); Opposers’ response to Applicant’s
interrogatory No. 6 (106 TTABVUE 20) (e.g., Fit Expo, GNC Show of Strength, Vitamin
Shoppe Product Education Conference, etc.)
109 Altieri Testimony Dep., p. 121 (115 TTABVUE 124); Altieri Discovery Dep., p. 155 (107
TTABVUE 61). This portion of the Altieri discovery deposition was improperly designated as
confidential.
110 Hall Discovery Dep., p. 78 (93 TTABVUE 47).
111 Sacks Discovery Dep., p. 204 (97 TTABVUE 77); Hall Discovery Dep., p. 147 (111
TTABVUE 9).
112 Hall Discovery Dep., p. 81 (93 TTABVUE 50); Sacks Discovery Dep., pp. 112, 122 (97
TTABVUE 48, 58).
113 Applicant’s response to Opposers’ interrogatory No. 7 (70 TTABVUE 17); Hall Discovery
Dep., p. 81 (93 TTABVUE 50); Sacks Discovery Dep., p. 122 (97 TTABVUE 58); Sacks
Discovery Dep., p. 84 (109 TTABVUE 26); Sacks Testimony Dep., pp. 56-74 (128 TTABVUE
78).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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Circumstances
for confusion
to occur
Opposers Applicant

Advertising/
Marketing
Social media, including
Facebook, Twitter, and
YouTube114
Social media,115 including
Facebook, Twitter, Instagram and
YouTube116

On the one hand, the parties simultaneously have used their “Beast” marks
without any reported instances of confusion for a number of years: the phrase
“Unleash the Beast” in their advertising, and in Applicant’s case as a trademark, for
15 years; REHAB THE BEAST for 6 years; UNLEASH THE ULTRA BEAST mark
for 5 years; and UNLEASH THE NITRO BEAST for 8 years. They have focused their
marketing efforts at the same 18-34 year old demographic through social media.
Moreover, Applicant’s products have been sold in over 300,000 retail units nationwide
available to ordinary consumers and, thus, available to Opposers’ customers. When
the BEAST tagline is used on point-of-sale displays and advertising, it is used in close
proximity to the MONSTER mark. On the other hand, Applicant uses its BEAST
marks as an advertising tagline posted on the back of cans and Applicant cannot
articulate the affect the tagline has had on its sales.
Under these circumstances, we find that there has been opportunities for
confusion to have occurred but because of the manner in which Applicant uses its

114 Altieri Testimony Dep., pp. 126-132 (115 TTABVUE 128-134).
115 Hall Discovery Dep., p. 79 (93 TTABVUE 48).
116 Sacks Testimony Dep., pp. 97-105 (128 TTABVUE 102-110). Applicant has an “Unleash
the Beast” homepage. Id. at 102. Applicant’s Twitter hashtag is “Unleash the Beast.” Id. at
104. Applicant’s Instagram account identifier is Monster Energy/Unleash the Beast. Id. at
106.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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marks on the backs of cans, the lack of any reported instances of confusion is a factor
that weighs only slightly against finding that there is a likelihood of confusion.
Applicant contends that the lack of any reported instances of confusion is
“underscored” by the survey conducted by Robert Klein. Mr. Klein conducted an
Eveready-type survey.117 The “Eveready” likelihood of confusion survey format is a
widely-used and accepted survey format. Anheuser-Busch, LLC v. Innovopak Sys. Pty.
Ltd., 115 USPQ2d 1816, 1828-29 (TTAB 2015). Mr. Klein showed the survey
respondents Applicant’s mark REHAB THE BEAST!
WWW.MONSTERENERGY.COM and asked whether the survey respondents
associated that phrase with a particular brand or company. Almost 70% of the survey
respondent stated that they associate Applicant’s mark with a particular brand or
company and 66% of those respondents stated that they associate that mark with
Applicant. No survey respondents associate the mark with Opposers.118
Despite the acceptance of the “Eveready” survey format, we find that Applicant’s
survey has little, if any, probative value in this case because the use of the mark
REHAB THE BEAST! WWW.MONSTERENERGY.COM skews the results in
Applicant’s favor. The essence of the marks at issue is the word “Beast” and its use

117 In Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366, 188 USPQ 623 (7th Cir. 1986),
cert. denied, 429 U.S. 830, 191 USPQ 416 (1976), the plaintiff conducted a survey to
determine whether there was a likelihood of confusion between defendant's EVER-READY
lamps and plaintiff Union Carbide's EVEREADY batteries, flashlights and bulbs. The survey
asked: “Who do you think puts out the lamp shown here? [showing a picture of defendant's
EVER-READY lamp and mark],” and “What makes you think so?” Id. at 640.
118 Applicant’s Brief, p. 45 (130 TTABVUE 47) (citing Klein Testimony Dep. Exhibits 3 and
8).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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in Applicant’s marks such as REHAB THE BEAST! Applicant’s use of the mark
REHAB THE BEAST! WWW.MONSTERENERGY.COM turns the attention of the
survey respondents away from the “Beast” portion of the mark and directs it to
“Monster Energy,” particularly because WWW.MONSTERENERGY.COM is a URL
which commonly incorporates a trade name. In this case, as shown by the results of
Applicant’s survey, Applicant’s mark MONSTER for energy drinks is well-known, if
not famous, and the WWW.MONSTERENERGY.COM portion of Applicant’s mark
expressly identifies Applicant, thus, leading the survey respondents to identify
Applicant as the particular brand or company with whom they associate the mark.
Applicant would have been better served to have used REHAB THE BEAST! so
as to focus the attention of the survey respondents as to whether they identify that
mark with a commercial impression highlighting the word “Beast” with a single albeit
anonymous source.
D. The conditions under which and buyers to whom sales are made, i.e., ‘impulse’
vs. careful, sophisticated purchasing.

As is often the case in inter partes proceedings, the parties are long on argument
and short on evidence with respect to consumers and their degree of care. The goods
at issue are nutritional supplements. They are regulated by the FDA.119 Nutritional
supplements are something you ingest for a specific purpose (e.g., energy, increase
performance, reduce inflammation, reduce cholesterol, etc.).120 Opposers’
supplements are “sports nutrition products … performance-enhancing products,

119 Altieri Testimony Dep., p. 108 (115 TTABVUE 111).
120 Altieri Testimony Dep., p. 212-213 (115 TTABVUE 188-189).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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products used by active people who are trying to achieve their fitness goals.”121
Opposers’ supplements retail for $40 to over $100.122 Mr. Altieri testified that, in his
opinion, consumers of nutritional supplements are concerned about the quality of the
products they ingest.123 On the other hand, Applicant’s products retail for $2-$3 a
can.124 Because Applicant’s primary channels of trade include convenience stores and
gas stations (which are not places consumers will linger and contemplate a purchase),
Applicant intends its products in part as an impulse purchase.125
Because Applicant’s products are sold in convenience stores and gas stations as
impulse purchases, they may be encountered by consumers of Opposers’ nutritional
supplements when they are in that marketing milieu. Accordingly, we find that the
products at issue are ordinary consumer goods purchased by ordinary consumers.
E. The similarity or dissimilarity of the marks.

We now turn to the du Pont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. In re E. I. du Pont De Nemours & Co., 177 USPQ at 567.

121 Altieri Testimony Dep., p. 108 (115 TTABVUE 111).
122 Altieri Testimony Dep., pp. 132-133 (115 TTABVUE 134-135). The trial size products are
substantially less (e.g., $6.99 to $9.99). Id.
123 Altieri Discovery Dep., p. 192-193 (107 TTABVUE 66-67). Opposers improperly designated
this testimony confidential.
124 Sacks Testimony Dep., p. 46 (128 TTABVUE 50).
125 Sacks Testimony Dep., pp. 47, 121, 146 (128 TTABVUE 51, 125, 149) (Applicant targets
the weekend warrior, not the fanatical, gym rat), p. 120 (128 (TTABVUE 124) (Applicant sells
its products wherever it can); Sacks Discovery Dep., p. 16 (99 TTABVUE 11) (Applicant’s
products are low-priced, impulse purchases).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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In comparing the marks, we are mindful that where, as here, the goods are identical,
the degree of similarity necessary to find likelihood of confusion need not be as great
as where there is a recognizable disparity between the goods. Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012);
Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698, 1700 (Fed. Cir. 1992); Jansen Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108
(TTAB 2007); Schering-Plough HealthCare Prod. Inc. v. Ing-Jing Huang, 84 USPQ2d
1323, 1325 (TTAB 2007).
“The proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at
1721; see also San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp.,
565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc.,
23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The
proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem.
Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975). As indicated above, the average customer is an ordinary
consumer.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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Opposers’ registered marks are THE BEAST and BEAST. Applicant’s marks are
• UNLEASH THE NITRO BEAST!
• REHAB THE BEAST!
• REHAB THE BEAST! WWW.MONSTERENERGY.COM
• UNLEASH THE ULTRA BEAST!
The marks are similar in that they share the word “Beast.” They differ in that
Applicant uses “The Beast” as part of tagline of which “the Beast” is a part. As
discussed above, when used in connection with nutritional supplements, the terms
“Beast” and “The Beast” engender the commercial impression of aggressive, high-
intensity performance. Applicant’s marks engender the same commercial impression
in that UNLEASH THE NITRO BEAST!, REHAB THE BEAST! and UNLEASH THE
ULTRA BEAST! focus the attention of the consumers on releasing or restoring their
over-the-top performance. In terms of the marks’ overall commercial impressions,
these basic similarities outweigh any specific dissimilarities that might be apparent
upon a side-by-side comparison of the marks. Similarity in any one of the elements
(appearance, sound, connotation or commercial impression) may be sufficient to find
the marks confusingly similar, In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014),
particularly, in a case like this, where Applicant’s products are impulse purchases
where consumers do not take the time to study the marks and see the differences. See
In re Davia, 110 USPQ2d at 1818 (casual purchasers of low-cost, every-day consumer
items exercise less care in their purchasing decisions); Eveready Battery Co. v. Green
Planet Inc., 91 USPQ2d 1511, 1516 (TTAB 2009) (same).
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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Under these circumstances, the fact that Applicant’s marks incorporate Opposers’
entire mark increases the similarity between them. See, e.g., In re Toshiba Med. Sys.
Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (applicant’s mark VANTAGE TITAN for
medical magnetic resonance imaging diagnostic apparatus similar to TITAN for
medical ultrasound diagnostic apparatus); In re El Torito Rests., Inc., 9 USPQ2d
2002, 2004 (TTAB 1988) (applicant’s mark MACHO COMBOS for food items similar
to MACHO for restaurant entrees); In re Riddle, 225 USPQ 630, 632 (TTAB 1985)
(RICHARD PETTY’S ACCU TUNE and design for automotive service centers similar
to ACCU-TUNE for automotive testing equipment).
The facts in Riddle are applicable to Applicant’s mark REHAB THE BEAST!
WWW.MONSTERENERGY.COM. In Riddle, the Board found that the commercial
impression of applicant’s mark RICHARD PETTY’S ACCU TUNE (stylized) was the
same as registrant’s mark ACCUTUNE.
Applicant urges that, because of the fame of Richard Petty
in conjunction with automobile racing, it is the “RICHARD
PETTY’S” portion of applicant’s mark which dominates the
mark and which would cause it to be easily distinguishable
from the mark shown in the cited registration. The problem
with applicant’s argument is that, while the name “Richard
Petty” might well be a famous one in connection with
automobiles and automobile racing, that fact does not
diminish the likelihood of confusion in this case. In
particular, those who encounter both the “ACCUTUNE”
automotive testing equipment and the automotive service
centers offered under applicant’s mark would likely believe
that Richard Petty endorsed or was in some way associated
with both the goods and the services, in that both marks
contain the designation “ACCUTUNE.”
Riddle, 225 USPQ at 632. Likewise, while Applicant’s mark MONSTER ENERGY is
well-known, if not famous, for energy drinks, consumers who encounter both
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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Opposers’ BEAST marks for nutritional supplements and REHAB THE BEAST!
WWW.MONSTERENERGY.COM for “nutritional supplements in liquid form” may
mistakenly believe that Applicant endorsed Opposers’ BEAST products or was in
some way associated with those nutritional supplements.126 See also In re Chica Inc.,
84 USPQ2d 1845, 1849 (TTAB 2007) (applicant’s mark CORAZÓN BY CHICA and
design for jewelry and watches is similar to CORAZON and design for jewelry because
applicant’s mark “will simply be viewed as the identification of a previously
anonymous source of the goods sold under the mark CORAZON.”); In re Apparel
Ventures, Inc., 229 USPQ 225, 226 (TTAB 1986) (“those familiar with only applicant’s
mark [SPARKS BY SASSAFRAS and design] would, upon encountering the
registered mark [SPARKS] on related goods, assume that all “SPARKS” products
come from a single source, and that that source was in some instances further
identified with the words ‘by sassafras.’”); In re Champion International Corporation,
196 USPQ 48, 49 (TTAB 1977) (consumers familiar with applicant’s HAMMERMILL
MICR CHECK-MATE paper who encounter registrant’s CHECK MATE for envelopes
would mistakenly believe that they were HAMMERHILL CHECK MATE envelopes);
In re C.F. Hathaway Co., 190 USPQ 343, 345 (TTAB 1976) (purchasers confronted by
GOLF CLASSIC men’s hats and “HATHAWAY GOLF CLASSIC” men’s knitted sport

126 In making this finding of fact, we considered the effect of Applicant’s entire mark,
including the addition of WWW.MONSTERENERGY.COM; we did not just blindly follow the
precedents that hold that the addition of a house mark to an otherwise similar mark may not
be sufficient to avoid a likelihood of confusion.
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
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shirts are likely to assume that both products emanate from or are in some way
associated with applicant).
Consumers are also often known to use shortened forms of names, and it is
possible that Applicant’s goods will be referred to as BEAST or THE BEAST
nutritional supplements in liquid form. Cf. In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring: “the users of language
have a universal habit of shortening full names – from haste or laziness or just
economy of words”).
In view of the foregoing, we find that the similarities among the marks outweighs
their differences.
F. Balancing the factors.
This is a very close case. However, neither the lack of any reported instances of
confusion nor the suggestive nature of Opposers’ BEAST marks are sufficient to
dissuade us from finding that the parties’ marks are similar. Therefore, because the
marks are similar, the goods are identical, and there is a presumption that the goods
move in the same channels of trade and are sold to the same classes of consumers,
and that Applicant’s goods are prone to impulse purchases, we find that Applicant’s
marks UNLEASH THE NITRO BEAST!, REHAB THE BEAST!, REHAB THE
BEAST! WWW.MONSTERENERGY.COM, and UNLEASH THE ULTRA BEAST! all
for nutritional supplements are likely to cause confusion with the registered marks
THE BEAST for “vitamins and nutritional food supplements” and BEAST for “dietary
and nutritional supplements.”
Opposition Nos. 91199986; 91202947; 91205388; and 91209540
- 44 -
Decision: The oppositions are sustained.