When you’re working on developing a reputation as a trademark bully, it’s good to go after multiple targets. We guess that’s why the website BevReview.com has received notice that it should remove any advertisement and sale of Monster Energy drinks from its site. The only problem is, it doesn’t advertise or sell drinks—it reviews them. And it didn’t give Monster Energy a good review.

BevReview’s editor Steve Tanner has been contacted twice now by Continental Enterprises, a firm working for Hansen Beverage Company to “help control the use of its mark.” Based on the language they used in their communications with BevReview, we think they didn’t even bother to read the page they’re complaining about.

Continental Enterprises (“Continental”) has been engaged by Hansen to help control the use of its mark. You are receiving this letter because Continental has received information that you advertised and/or sold products bearing one or more of the Hansen marks, or confusingly similar derivations thereof. We understand that the inclusion of the Hansen marks on your product may have been an oversight. However, on behalf of Hansen, Continental must demand that you discontinue your advertisement and sale of these products.

Upon your receipt and review of this letter, please contact our offices so that we may work toward a resolution of the issue that is satisfactory to all parties involved.

[...]

Hansen Beverage Company considers this a serious matter and, if you do not take immediate steps to resolve this issue, they will be forced to take more aggressive action to protect their intellectual property rights.

At first we were amused by how stupid Continental Enterprises was being by mistaking a review for an advertisement. Then we though Hansen was being duped by a firm that was just trying to look busy so it could earn its keep. But after reading the review in question, we wonder whether they’re confusing the two formats on purpose.

You see, BevReview’s review of Monster Energy was not that favorable:

The color of the drink was dark yellowish… I guess you could call it amber, but who really knows. Think apple juice with a somewhat red tint. As for the taste, well… it was odd. Think citrus + medicine. Yum! There wasn’t a lot of carbonation (which reminded me somewhat of how Vault is being positioned as a hybrid soda/energy drink). The aftertaste was somewhat bitter, rather acidic. Not really pleasant, to tell you the truth. I actually couldn’t quite place what the heck the flavor actually was. It starts out smooth, and then the aftertaste kicks in and ruins it. (Of course, this might also have to do with the fact that sucralose is listed as an ingredient.)

Overall, the taste was weird and I don’t think I’d want to drink this again.

So maybe Hansen and Continental aren’t being as dense as they appear; maybe they know that if they intentionally misread the content of a site, they may be able to informally pressure the blog’s owner to remove the negative review. Either way, before you drink a can of Monster Energy, we hope you take BevReview’s fair and honest review of the drink under consideration.

“Monster Energy vs. BevReview.com” [BevReview]

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We’re back to thinking Hansen Beverage Company is being taken for a ride by its legal counsel, Continental Enterprises, with this latest chapter in their trademark bullying saga. An actor named Trygve Lode has been contacted by Continental Enterprises on behalf of Hansen and told to remove all advertising and sales of Monster Energy from his site. The only reference to Monster Energy is the photo above.

Trygve writes:

Hansen, not satisfied by merely going after smaller beverage manufacturers, apparently has decided to broaden their anti-infringing legal efforts, since this morning [October 14th, 2009] I received the aforementioned not-spam-even-if-it-looks-like-it email from Continental Enterprises, claiming that I am advertising and/or selling products that are confusingly similar to Monster Energy Drink™ and issuing the “demand that I discontinue [my] advertisement and sale of these products.”

The trigger for this sudden legal threat is this photo someone took of Trygve behind the scenes of a movie called “The Shadow Walkers,” where, unless we’re misreading the title, he played some sort of creature who walks shadows for a living. Yes, monsters keep shadows for pets, deal with it.

The reason for having a monster hold a can of Monster Energy in a snapshot should be obvious, but there’s also a slight history between Hansen and Trygve:

As a side note, the above picture (which has taken on a life of its own and tends to turn up embedded in message boards and other webpages across the internet) was taken when I was discussing the possibility of a product placement agreement with Hansen’s. Nothing ever came of it at the time, but I thought the picture was amusing enough all the same.

We’re just not sure how you can extrapolate from this one picture, taken back when Hansen and this monster were professionally flirting with each other, to trademark infringement—especially now that it’s fallen into the hands of the general forum-posting public. We sort of hope Monster Energy tries to sue the web.

We’ve contacted Hansen to ask them to confirm that they really have hired Continental Enterprises to speak on their behalf, because at this point we’re starting to wonder if maybe it’s just an online prank at their expense.

“Product Displacement” [Trygve.com]

RELATED
“Monster Energy Trains Legal Guns On Beverage Review Website”
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(Photo: Trygve Lode)

Score a victory for the little guy. Matt Nadeau, the owner of the Rock Art Vermont brewery, which was slapped with a lawsuit by the sue-happy makers of the Monster energy drink for brewing a beer called “Vermonster,” has gotten the bullies to step off.

WCAX in Vermont reports:

Rock Art lawyers have been in negotiations with Monster lawyers and late Wednesday afternoon the two sides came to an agreement. Rock Art gets to keep ‘The Vermonster’ name as long as it stays out of the energy drink business.

Nadeau is pleased with the victory and says he would like to see more trademark reform.

“We’re so happy and appreciate all the support,” Nadeau said in a phone interview from his home, Wednesday night. “It would be wonderful to take this momentum and look at the next step. A little bit of reform. I understand big corporations have built their business, but the small guy needs to be able to fight a reasonable battle.”

Kudos for Nadeau for refusing to back down. Maybe this will inspire some of the other companies Monster’s parent, Hansen, is suing harassing for no reason.

A Monster Win for Rock Art [WCAX Vermont]
(Photo: phototaker)
(Thanks, Amy!)

We thought that the company behind Monster Energy drink (and its lawyers) were done with petty legal action against anyone bold enough to use the word “Monster.” We last reported on such action in 2009. Turns out that the, uh, monster was only sleeping, though, and the company has re-emerged to issue a cease and desist order to an aquarium keepers’ forum, Monster Fishkeepers. That site has owned their trademark since 2005, but Monster Energy apparently claims to own the word “monster.” And the letter “M.”

Old-school Consumerist readers will remember that suing anyone attempting to name a product or company using the word “Monster” used to be the job of Monster Cable. We kept waiting for Monster Cable and the owner of Monster Energy Company to sue each other in a recursive loop of billable hours that would keep each other out of other companies’ way, but it never happened.

And so they’ve gone after the Monster Aquaria Network, assuming that cans of energy drink and massive aquaria filled with rare fish are pretty much the same thing and that consumers will get confused.

Here’s the message posted on a blog asking site users and other interested parties to help:

On February 24, Monster Energy Company sent a cease & desist letter to MonsterFishKeepers.com in regards to their use of the marks MonsterFishKeepers, and the MonsterFishKeepers “M” symbol in connection with clothing, accessories, and stickers. It also requires us to drop the trademark applications that were pending at the time for said trademarks. Monster Energy claimed that the use of these marks constituted trademark infringement and would cause confusion with their own MONSTER™, MONSTER ENERGY®, and MONSTER “Claw M®” marks. MonsterFishKeepers.com asserted that an informed consumer would be unlikely to mistake the two brands as one is specifically marketed towards the keepers of large fishes in specialized online sites & aquarium stores while the other is more openly marketed in sports-related facilities and traditional retail stores.

Later on, Monster Energy sent a series of demands including, but not limited to, abandoning the trademark applications for the MonsterFishKeepers “M” symbol marks as well as ceasing to use those marks in connection with apparel & accessories, refraining from using or applying for any marks containing the word “Monster” or the letter “M,” refraining from using the colors black & green on any MonsterFishKeepers.com or Monster Aquaria Network Websites or in connection with apparel & accessories, and pay Monster Energy Corporation its attorneys’ fees in connection with this matter. MonsterFishKeepers.com has no intention of agreeing to the bulk of Monster’s demands as these terms are extremely restrictive & unfair, not to mention downright ridiculous in some cases.

As you know, we have been using our MonsterFishKeepers and the MonsterFishKeepers “M” design marks since March 30, 2005 and the marks were duly registered with the U.S. Patent and Trademark Office since October 23, 2007. We strongly believe that the law is on MonsterFishKeepers.com’s side, but MonsterFishKeepers.com will not be able to fund the legal proceedings that would be needed to resolve this dispute with Monster Energy. Unfortunately for MonsterFishKeepers.com, Monster Energy can file an unlimited number of appeals even if MonsterFishKeepers.com wins the first round of the case; in the end, Monster Energy would certainly outlast MonsterFishKeepers.com in the legal proceedings after MonsterFishKeepers.com runs out of money since there is no way that such a small company could compete with such a large company in terms of legal fees. As such, we, the staff of the Monster Aquaria Network, ask that you, the reader & MonsterFishKeepers.com member & supporter, help us to convince Monster Energy Corporation to drop this issue immediately. We intend to contact them via any means possible to let them know that this is not acceptable as well as hit them at the bottom line by boycotting all Monster Energy Corporation products. We would greatly appreciate it if you would take a small amount of time out of your day to let Monster Energy know that what they’re doing is not going to be well regarded/well perceived by us as consumers of their soft drink products.

In closing, we thank you for your continued support, and we hope that we will be able to enjoy many more years of fish-filled fun once this issue is resolved.

The site has a Change.org petition, and also encourages fans to contact the company and urge them to be reasonable.

Silly legal action from Monster Energy has been brought down due to consumer outcry before, such as when they pursued a Vermont craft brewery that served up a beer called Vermonster.

Support MonsterFishKeepers™ [Blog]

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So here’s a copyright infringement lawsuit involving the makers of Monster Energy Drink in which they are the ones being sued and not the ones claiming ownership of an incredibly common word. Instead, the beverage company is the target of a lawsuit brought by the Beastie Boys, who claim Monster cobbled together dozens of their tunes to create promotional videos.

According to the suit, filed yesterday in a U.S. District Court in Manhattan:

[Monster], without plaintiffs’ consent, synchronized and recorded certain of the Beastie Boys Musical Compositions and Beastie Boys Sound Recordings together with visual and other material in the creation ofpromotional videos for defendant Monster’s products, including a promotional video for Monster’s promotional event “Ruckus in the Rockies 2012″ (the “Video”). The soundtrack of the Video is comprised substantially of excerpts from the Beastie Boys Sound Recordings and the Beastie Boys Musical Compositions totaling more than three minutes in duration.

On information and belief, defendant Monster has used the Video and similar promotional videos to create an association with the Beastie Boys and the Beastie Boys Musical Compositions and Beastie Boys Sound Recordings and defendant Monster’s products, promotional events, and marketing, including on Monster’s website http://www.monsterenergv.com and in various social media websites such as Facebook.

If the video weren’t bad enough, the complaint alleges that in May of this year, “Monster caused a link to a downloadable audio recording (the “MP3″) embodying a 23-minute medley of excerpts from the Beastie Boys Sound Recordings, the Beastie Boys Musical Compositions and the sound recordings and musical compositions comprising the additional Beastie Boys MP3 Copyrights to be posted on various websites [including Monster's website and YouTube] in conjunction with the Video, together with an offer that the MP3 was available for free download.”

And it doesn’t help Monster’s case that the text accompanying the “Beastie Boys mega mix” reads, “With tracks from the Beastie Boys putting you in the vibe and a sponsorship from Monster Energy, this edit will make you want to ride and party like no other.”

The Boys are seeking an injunction against Monster’s use of the group’s songs, as well as “a trebling
of defendant Monster’s profits and actual damages sustained by plaintiffs, prejudgment interest, reasonable attorneys’ fees and costs.”

Speaking of copyright infringement, an urban legend surrounds the Beastie Boys’ seminal 1989 album Paul’s Boutique, claiming that the group swiped all or most of the more than samples used on the album. The Boys have denied these rumors, saying that they did pay for the use of the samples — just not very much, as it was still a somewhat new way of producing an album at the time.

You can read the PDF of the lawsuit HERE.

The lawsuit comes as news outlets report that the last will and testament of Beastie Boy Adam “MCA” Yauch, who passed away in May, clearly states that the music he wrote and his image could not be used in any sort of advertising.

Huge thanks to Keith for the tip!

(stevendepolo)

The 14-year-old died last December after consuming two 24-ounce Monster Energy cans within a 24-hour period. A lawyer for the late girl’s mother claims the cause of death was “caffeine toxicity in the setting of a cardiac arrhythmia.”

According to records uncovered by a Freedom of Information Act request filed by the plaintiff, the FDA has received 37 adverse incident reports allegedly related to Monster. A rep for the agency confirmed to reporters yesterday that five of those incidents involve deaths with a sixth, non-fatal heart attack also listed.

It’s not known what other factors — alcohol, drugs, etc. — might be involved in any of these incidents.

In a statement to Bloomberg, the company has denied any wrongdoing:

Over the past 16 years Monster has sold more than 8 billion energy drinks, which have been safely consumed worldwide… Monster does not believe that its beverages are in any way responsible for the death of [the 14-year-old]. Monster is unaware of any fatality anywhere that has been caused by its drinks.

While there are FDA guidelines for safe levels of caffeine in soda, most energy drinks aren’t subject to the same thresholds because they are marketed as dietary supplements. A typical 24-ounce Monster has around 240 mg of caffeine, or about 1.7 times the amount of caffeine a soda could have and still be considered safe by the FDA, but less than the approx. 330 mg. the FDA says you would get from a 16-ounce coffee.

Between 2005 and 2009, the number of emergency room visits tied to energy drinks increased tenfold.

Earlier this year, Illinois Senator Dick Durbin asked the FDA to consider caffeine limits on energy drinks and the agency has said it “continues to evaluate the emerging science on a variety of ingredients, including caffeine.”

(Chris Rief)

The NY Times was the first to break the story, reporting that 5-Hour Energy is cited in at least 90 FDA incident reports, including more than 30 trips to the hospital for things like convulsions, heart attacks, and one case of a spontaneous abortion.

Though the drink’s mention in an incident report is not a definite indicator that it had anything to do with the problem — it could just be a coincidence or the result of mixing the drink with another item — the Attorney General for the state of New York tells Good Morning America that his office is investigating the claims.

The FDA says it is looking into the death reports, all of which were actually submitted to the agency by Living Essentials, the company that distributes 5-Hour Energy. Per FDA regulations, companies that market dietary supplements must alert the agency any time they learn of a death or serious injury that could be related to their product.

In a statement, Living Essentials maintains that its drink has about the same amount of caffeine as a cup of coffee. A recent study by Consumer Reports pegged the 5-Hour Energy caffeine content at around 215 mg, which would be in line with the top end for an 8 oz. cup of brewed coffee, according to the Center for Science in the Public Interest.

The issue with energy “shots” like 5-Hour is that they are only 2 oz. in size, making it incredibly easy for customers to consume multiple shots in a short period of time.

And though Living Essentials contends that it does not market the product as something to be mixed with alcohol and that it advises customers to consume no more than two shots in a 24-hour period, most of us know that some people are both combining 5-Hour with booze and drinking more than two or three of these shots in a short period of time.

As many have pointed out, the same could be said about any number of beverages — alcoholic and non-alcoholic — so why the sudden focus on energy drinks?

It’s partly because they are an incredibly fast-growing segment of the beverage market, so there are going to be growing pains as consumers learn how to handle energy drinks properly and how companies should market them.

It’s also because there is a schism in the market between products like Red Bull, which is advertised primarily as a beverage, while 5-Hour Energy and its ilk market their products as dietary supplements.

The FDA currently has guidelines for caffeine in soda, but the dietary supplement loophole allows makers of those energy drinks to get around the guidelines.

Should they all fall under one group or are they truly two separate kinds of products that require two separate sets of guidelines?

While these things are being decided, just remember that energy drinks — like most other things in life — are best consumed in moderation. That may sound like your stodgy uncle trying to give you advice, but it’s true.

(Plankton 4:20)

Following on the heels of reports linking ill health effects to energy drinks like Monster and 5-Hour Energy, a new government study says those beverages are “a rising public health problem,” and have been linked to 20,000 visits to emergency rooms around the country.

A survey of U.S. Hospitals by  the Substance Abuse and Mental Health Services Administration says that the number of ER visits tied to energy drinks has doubled in the last four years. Back in 2007 there were 10,000 and that number has spiked to 20,000 in 2011, reports ABC News.

Out of those 20,000 visits, 42% of the cases involved mixing the drink with other stimulants like Adderal, Ritalin or alcohol. The rest were reportedly just the result of drinking the beverage itself.

While critics and experts have been calling BS on claims by energy drinks that they’re actually beneficial to your health, critics of the stuff say it’s completely the opposite. To that point, the Food and Drug Administration recently released a report linking five deaths to consumption of 5-Hour Energy, and an investigation by the New York Times upped that number to an alleged 13 total deaths.

Despite the mounting evidence against the energy drinks, the American Beverage Association, the industry trade association, told ABC News that the drinks are totally safe and that it is ”impossible to understand the actual role — if any — of energy drinks in these hospital visits.” And besides, says the ABA, ”mainstream energy drinks contain about half the caffeine of a similar size cup of coffeehouse coffee.”

The FDA says it will pay close attention to the numbers reported in this study.

“We will examine this information to determine whether it can be used to assess whether energy-drink products can be legitimately linked to the types of adverse events reported in the … data,” an FDA spokesman said.

20K ER Visits Linked to Energy Drinks [ABC News]

(stevendepolo)

The lawsuit states that the teenager went into cardiac arrest after drinking two, 24-ounce cans of Monster during one 24-hour period. But a lawyer for the beverage company tells the AP that physicians hired to review the medical records say the young woman died of natural causes brought on by pre-existing heart conditions, and that the caffeine toxicity claim on the autopsy was based on statements made by the girl’s mother.

The official cause of death listed on the autopsy is “cardiac arrhythmia due to caffeine toxicity complicating mitral valve regurgitation in the setting of Ehler’s-Danlos syndrome,” which would seem to indicate that the combination of caffeine and the heart condition resulted in death. When reached by the AP, the medical examiner’s could not immediately confirm whether a blood test had been performed to check for caffeine levels.

An attorney for the girl’s mother brushed off concerns about a possible lack of a blood test, saying that the case will ultimately be decided by a jury, “Not doctors paid by billion-dollar corporations to attend press conferences.”

The lawsuit has brought concerns about energy drinks into the public forum, as documents revealed that the Food & Drug Administration has received dozens of adverse incident reports about Monster alone, with five of those involving deaths.

The makers of Monster and other energy drink makers have maintained that their products are safe and contain less caffeine than some coffee drinks you’d get at Starbucks. However, there are no FDA standards for legal or safe caffeine levels in these beverages.

(stevendepolo)

In response to all the controversy surrounding the potential negative health effects of all kinds of energy drinks, Monster Energy Corp. is retooling its marketing: Instead of hawking them as dietary supplements, claims which have been questioned by federal regulators, the drinks will now be sold as beverages.

The change comes as Monster joins the American Beverage Association, which took the company under its wing and suggested it sell the product as a food, a spokeswoman tells CNN. The product itself won’t change a bit, but the labels will soon include caffeine content in each can.

“Monster has a commitment to being responsible and wants to be transparent about the ingredients in their products,” the spokeswoman said.

Monster came under fire when the mother of a 14-year-old girl who died after drinking two Monster Energy drinks sued the company, but it claimed caffeine wasn’t to blame. She’d had 480 milligrams of caffeine, the equivalent of 20 8-ounce cans of soda.

Any company that makes a dietary supplement has to tell the FDA of any adverse events — which doesn’t mean the product is responsible or contributed to the health issue — linked to its product, but that doesn’t apply to products sold as food or beverages. Monster already has 20 adverse event reports under its belt, five of which are linked to death.

So it follows that if Monster is now sold as a food, it won’t have to report such events to the FDA, at least not in the same way.

As an FDA spokeswoman notes, an adverse event doesn’t mean the agency is concluding the product contributed to or caused the health situation: ”When important information is missing from a report, it is difficult for FDA to fully evaluate whether the product caused the adverse event or simply coincided with it.”

Monster Energy adds caffeine content to labels [CNN]

(stevendepolo)

Adam “Ad-Rock” Horovitz and Michael “Mike D” Diamond, the two surviving members of the Beastie Boys, wore suits and sneakers at the federal courthouse in NYC as plaintiffs against Monster.

The band claimed that Monster used its songs in a series of promotional videos and mixes at a snowboarding event, which goes against the late Adam Yauch’s will. He stated that his likeness and art was not to be used for advertising, something GoldiBlox has been having trouble with as well.

And as might be expected, this seems like it’s going to be a colorful trial, reports Billboard. First, the defense had to explain to the courtroom what “dope” meant, saying: “”You’ll learn during the course of this case that ‘dope’… is a positive affirmation.”

The defense did admit that it had infringed on the Beastie Boy’s work, but that the $1 million in damages claimed for the “implied endorsement” in the Monster video is “nonsense. The defense says it can prove the damages aren’t more than $125,000.

Meanwhile, Horovitz took the stand to explain the value of his band’s work, in order to reap a larger reward. During his time up there it sounds like he had a good time — laughing and smiling when he had to explain things like what a “single” is.

He also had to confirm during cross examination that Mike D was indeed, wearing a sailor costume during a question about whether or not the band ever sold out for a watch campaign, despite their insistence that they’d never license their image for consumer products.

“He sure is,” Horovitz replied with a smile when asked if a huge poster of Mike D in the aforementioned outfit showed him dressed like a sailor.

The case should take less than a week, during which time I expect everyone will come to a closer familiarity with all things dope and nautical.

Beastie Boys v. Monster: Ad-Rock Takes Stand, IDs Mike D In a Sailor Suit [Billboard]