A federal judge in Florida ruled this week that Monster Energy Corp. did not violate the trade dress of Bang Energy when it launched performance energy brand Reign Total Body Fuel in 2019, putting a cap on one branch of the ongoing legal feud between Monster and Bang manufacturer Vital Pharmaceuticals (VPX).
U.S. District Judge Roy K. Altman ruled on Tuesday and entered a judgment Wednesday stating that VPX was unable to establish that its trade dress was “inherently unique or distinctive” and said that “in the end, this case simply wasn’t close.”
VPX filed the lawsuit against Monster in March 2019, two months after Reign was announced and placing the company in direct competition with Bang. The suit alleged that Monster had committed trademark infringement, trade dress infringement and unfair competition.
The suit also claimed that in December 2016, Wyoming-based company DASH LLC had registered the “Reign” trademark for use in a number of products including dietary and nutritional supplements and that in March 2019 exclusive licensing rights for the trademark were acquired by JHO Intellectual Property Holding, which is led by VPX CEO Jack Owoc. However, Altman previously found during the case that VPX’s ownership claim to the trademark was invalid.
According to Altman’s ruling, the court examined hundreds — “if not thousands” — of energy drinks to determine whether VPX’s Bang trade dress was sufficiently unique enough for Monster to have deliberately plagiarized its design. Altman concluded that VPX failed to prove consumers were likely to confuse Reign with Bang, arguing that the labels were effectively in line with “a crowded marketplace of black energy drinks” that includes similarly packaged brands such as Rockstar, Venom and Quake. As well, he highlighted visual similarities between Bang’s black-label cans and Monster’s core energy line, which has been on the market years prior to Bang’s introduction of its current look.
“Indeed, VPX opened the trial by revealing a shocking (and entirely new) theory: that Monster had stolen the precise colors Bang had used in its cans—down to the very last shade—in a craven effort to pass its product off as Bang’s,” Altman wrote in his judgment. “By the end, though, VPX’s copied-paint theory had been totally debunked—and its case was left in shambles.”
The court ruled that VPX was entitled to no relief and ruled that the case shall remain closed.
The case initially went to trial last year and concluded on an unusual note, Law360 reported in October. With the trial’s closing arguments held via Zoom video conferencing, VPX counsel Miles D. Scully, of Gordon & Rees LLP, picked up a guitar and gave a rendition of Jimmy Buffett’s “Margaritaville,” singing “Wasting away again in federal court, Bang versus Monster trade dress trial. Zoom, Zoom, Zoom.” Scully argued that just as he can’t lay claim to writing the music, Monster can’t claim it created an original can design for Reign.
“We know that’s Jimmy Buffett. We know a Bang can when we see it,” Scully said. “I can change the words, and if I do it, I can’t call it my own, because I’ve ripped somebody off, which is what has happened with Reign.”
In its Q2 earnings call yesterday, Monster co-CEO Rodney Sacks briefly commented on the ruling, stating that “Monster always believed and maintained that VPX’s claims were frivolous, and we are extremely pleased that the court rejected all of VPX’s claims while vindicating Monster’s rights.”
VPX did not immediately respond to a request for comment from BevNET.
Though Tuesday’s ruling closes the book on this lawsuit, Monster and VPX remain engaged in at least one ongoing case that was filed by Monster in September 2018. That suit alleges that VPX had engaged in false advertising by claiming that ingredients in Bang can help treat “all forms of dementia,” among other health callouts.
VPX also found itself at the center of another legal dispute this week. On Tuesday, Sony Music filed a lawsuit in Florida federal court claiming that the company had used its music without permission in more than 200 videos posted to the official Bang Energy TikTok, Instagram, YouTube and Facebook accounts, citing the use of at least 132 different copyrighted recordings.