Monster Energy vs. BevReview.com


Update 10/15/09: Consumerist.com, owned by Consumer Reports, has picked up on our story… Monster Energy Trains Legal Guns On Beverage Review Website


Here on BevReview.com, we not only like to review beverages (it's sort of in our name), but also speculate and discuss trends & patterns we often see in the industry. We don't claim to be experts on the matter, but hopefully, we give you something to think about every now and then.

Monster Energy vs. BevReview.com

Monster Energy vs. BevReview.com

And while we've been reviewing beverages in various capacities since 2001, something interesting happened last week. Apparently, a company didn't like what we were doing and decided to send their lawyers our way. Fun stuff!

Here's the context… I received what appeared to be a legitimate message from a law firm last week, submitted via a web-based contact form attached to my personal discussion forums, TannerWorld Junction. (Without actual mail headers, we cannot confirm if this message is authentic, but we have our hunches.) The message was written in regard to a beverage review I wrote in March 2007 and posted on those forums, in a time before we formally launched BevReview.com.

Monster Energy

Monster Energy
(Photo by Steve Tanner, March 2007)

The complaint referred to this review of Monster Energy — which can also be found cross-posted here on BevReview. Just so you know, Monster Energy is owned by Hansen Beverage Company. Read the original review for yourself and see what you think.

Monster Energy review on TannerWorld.com

Original review via TannerWorld Junction
(Source: forums.tannerworld.com)

For those interested, here's the text of the complaint, received via e-mail on Wednesday, October 7 at 9:31 a.m.

Name:
Legal
E-mail Address:
Legal@ce-ip.com

Comments:

Re: Hansen Beverage Company Trademark Infringement

To Whom It May Concern:

As I am sure you are aware, Hansen Beverage Company ("Hansen") is responsible for the production of the Hansen brand juice, teas and energy drinks and the Monster brand energy drinks. Relative to this business, Hansen owns many valuable designs, trademarks, trade dress and copyrights, which it uses to identify and market its Hansen and Monster brand products ("the Hansen Marks"). The Hansen marks are of great value to Hansen, as they are used to indicate that goods or services are affiliated with and monitored by Hansen. Considering this, every time the Hansen marks appear in the marketplace, Hansen's good name and reputation are on the line.

Hansen Beverage Company

Hansen Beverage Company
(Source: hansens.com)

Legally, it is the responsibility of trademark owners to protect and control the use of their trademarks. Often the need and obligation to protect its marks places Hansen in a very difficult position. If Hansen allows its marks to be used in any way that does not signify that Hansen is the source of good or service, then the value and meaning of Hansen marks are diminished. If Hansen allows these issues to go unaddressed, it may lose its rights to the Hansen marks.

Hansen is fully aware of the fact that it would not be as successful as it is without the continued passion and devotion of Hansen and Monster enthusiasts. However, the way in which Hansen allows its trademarks to be used is strictly prescribed by law. Hansen simply cannot allow the Hansen marks to be used without its explicit authorization. For this reason, Hansen is forced to consistently monitor the use of the Hansen marks or risk losing ownership of those marks.

Continental Enterprises

Continental Enterprises
(Source: ce-ip.com)

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.

Sincerely,
Darlene R. Seymour
General Counsel
1292 East 91st St.
Indianapolis, IN 46240

P 317.818.0523
F 317.566.2453

http://forums.tannerworld.com/showthread.php?t=8751

The firm sending the complaint is identified as Continental Enterprises, which according to their website, "is an intellectual property consulting firm that takes a novel and aggressive approach to brand protection and infringement issues."

After the initial shock wore off, along with questioning "is this for real?", I talked with some associates who run similar websites that also feature reviews. After some consultation, we decided to withhold a response, waiting to see if a second communication would arrive and/or to verify the authenticity of the original complaint.

Well, yesterday, another e-mail arrived in our Inbox, again through the same web contact form. This time it arrived at 1:48 p.m. on October 18:

Name:
Legal Dept
E-mail Address:
Legaldept@ce-ip.com

Comments:

Re: Hansen Beverage Company Intellectual Property

To Whom It May Concern:

I have yet to receive a response to my prior correspondence with you.

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.

I await your immediate response.

This correspondence is being sent in an attempt to achieve a prompt and informal resolution of this matter, and is thus privileged.

Nothing contained in and/or omitted from this letter or any prior communications is intended to be or should be considered an admission of any fact or a waiver of any right or defense, all of which are expressly reserved.

Sincerely,
Darlene Seymour
General Counsel
1292 East 91st St.
Indianapolis, IN 46240
P 317.818.0523
F 317.566.2453

Link of violation: http://forums.tannerworld.com/showthread.php?t=8751

First of all, to the folks at Hansen and Monster Energy… what the heck? Ever hear of "fair use". I fail to see anything in my reviews that could be considered us having "advertised and/or sold products bearing one or more of the Hansen marks, or confusingly similar derivations thereof."

Of course, the more ironic part… Hansen Beverage Company has previously provided BevReview.com with samples of their beverages for the purposes of online review. Perhaps the marketing/PR department should talk to the legal folks!

Comments

  1. Interesting timing, I saw your tweet about this right after I read this story: http://www.washingtonbeerblog.com/boycott-the-monster-a-small-brewery-told-to-cease-and-desist/
    Basically Monster is threatening a small VT brewery who makes a beer they call Vermonster.

    Suffice to say I've purchased my last Monster branded energy drink (they all taste pretty much the same to me anyway, so it isn't much of a sacrifice).

  2. But you don't sell anything…unless I am missing your online store…and your site is free – so that angle is safe too.

  3. Steve…keep up the good fight.

  4. This is an example of an overzealous legal team trying to earn their keep. As the firm contacting you was contracted by, but not part of Hansen, they likely know nothing of your previous dealings with the company. Furthermore, you're legally in the right. Contact them (preferably by certified mail) explaining in no unclear terms that you are a review site with a history of reviewing Hansen products, and that you have no intention of altering or removing said reviews, as they don't violate any laws much less advertise or sell Hansen products. If they persist beyond that, contact the EFF (eff.org) – they'll be able to point you in the right direction as far as legal counsel of your own is concerned. If they litigate they're doing so maliciously, and you can counter sue accordingly, but I highly doubt it would come to that. They're probably just throwing out a wide net in hopes of getting someone to take something down or change something on their site so they can go back to Hansen and say "See? We're totally worth the money we're charging you!"

    In related news, a microbrew named Vermontster received a nasty letter from these jokers recently, and again, this law firm is in the wrong, and just shaking a tree in hopes of some delicious fruit falling out.

    Best of luck with this – hope it works out without too much hassle.

  5. I think the Continental thing must be some kind of phishing scam. It makes no sense in regard to the review. You might do Hansen the courtesy of forwarding the email with full headers to explain how Continental has damaged the reputation of Monster and Hansen as a company of goodwill selling modern free-spirited drinks.

    As an example: I've never purchased a Snapple drink – EVER! Know why? Because Rush Limbaugh was their initial spokesperson. Seeing this email and assuming that it is real, until I read otherwise from Hansen's themselves, I won't touch another Hansen product. Stuff like this leaves a bad taste in my mouth.

  6. Having (shockingly!) received a few of these sorts of notices in my blog's lifetime, I can safely say that whatthegeek, above, in on the money. You should follow his advice. *And* fwd/cc all correspondence thus far to your contacts at Hansen's Proper, as worldmikel suggests. All future correspondence as well.

    Really though, unless you receive a C & D, they're just making noise. And getting on the bad side of review sites is probably not the route Hansen's want to take.

  7. I call bs on their part. You sell nothing. I think they just scanned the net looking for images and mailed a bunch of people. If they actually took the time to look at your site they would see that you sell nothing. I see no reason not to call them and tell them they are mistaken. They said "advertised and/or sold products bearing one or more of the Hansen marks" which is not something you do.

  8. Thought this might be of interest to you if you hadn't already seen it:

    http://consumerist.com/5381528/brewer-sued-by-monster-energy-drink-asks-america-for-help

    Seems like Monster Energy are some really nasty people….

  9. As a blogger I would say your in the right and shouldn't have to take down your content. Products can be reviewed and information of your opinion may be posted online. Thinking of any tech website, they review products and they give their opinion on it without any fear of being sent a take down letter. Hold your own and I agree with whatthegeek and if it becomes worse contact the EFF.

  10. (IINAL)

    First of all, both of the letters are clearly form letters that that company is sending to people who advertised and/or sold Monster products. They just didn't bother to change the words for someone who … reviewed them …

    Secondly, you linked to the fair use article on Wikipedia, which is about copyright fair use. Trademark fair use (http://en.wikipedia.org/wiki/Fair_use_(U.S._trademark_law)) is slightly different, but you're still most definitely in the right on this one.

    If you still haven't officially responded, I think you have two courses of action you could take. You could try to get an understanding of the underlying law and case law that says that you're right, and fire off an official-sounding, legalese response. Failing that, I'm sure that with the publicity this is bound to receive, you can find either a lawyer or law student to do this for you, pro bono.

    I highly doubt that anyone will take you to court over this. But your response to them still needs to be very exact and well-thought-out, because if it were to go to trial, God forbid, that (and hey, likely this very blog post!) would be in the record.

    Good luck!

  11. This isn't "an example of an overzealous legal team trying to earn their keep." Companies with trademarks covering common words must be vigilant about use of their mark lest they lose it because of dilution. There's two general strategies to protect a trademark from dilution: 1. Send out scary emails and file nuisance lawsuits. The mere act of doing either sends out the message that you don't agree to your mark being used in unauthorized ways. 2. Fight expensive legal battles to keep your mark once someone tries to encroach on your domain due to the dilution.

    Option 1 makes you look like a dick. Option 2 is wildly expensive. This is why companies with cash to burn and a lot vested in their image as a "good guy" (e.g. Apple) choose option 2, and companies who don't have a lot of cash to burn and don't care about their image (e.g. Hansen) choose option 1.

    I hate kowtowing to pressure, but in all honesty, they can and may sue you. Although their claim is meritless, it'll cost you thousands of dollars to get it tossed out at summary judgment. And God help you if your lawyer f's that up and you have to go to trial. This sucks, I know, but it's no joke.

  12. And to everyone with fantasies of this blog counter-suing and winning attorney's fees and/or Rule 11 sanctions, you should look at:

    http://en.wikipedia.org/wiki/Pearson_v._Chung (The case where the DC judge sued a dry cleaners for $67 million, forcing them to rack up $87,000 in legal fees. No sanctions, and no award of attorneys fees).

    http://en.wikipedia.org/wiki/Scientology_and_the_legal_system (They are the poster child for vexatious litigation, and they've been sanctioned exactly once.)

    These lawyers are professionals. They do this all day, every day. They know exactly how little (and it really is very little) they have to do to avoid being sanctioned.

  13. Our law firm has dealt with Continental before. They really have no idea what they're doing, and this is par for the course for them. Don't freak out, and don't give in. Feel free to email me.

  14. @John: Yes, protecting your trademark is not only legitimate, but required to keep your trademark.

    This is not a trademark holder protecting its trademark. This is clearly a company trying to suppress a negative review about its product. It has nothing to do with trademark. If it did have anything to do with trademark, then the very process of reviewing a product or service that is trademarked would be illegal. Consumer Reports would be dead. Ebert and Roper? God knows what they'd be doing. Yelp wouldn't exist.

    I say this again: this has nothing to do with trademark. The courts have said time and time again that it's okay to mention trademarked terms when reviewing products or services. In fact, some courts have encouraged it.

  15. I typed "Continental Enterprises" into Google and the first thing that came up is this link:

    http://www.tabberone.com/Trademarks/HallOfShame/CyberCops/ContinentalEnterprises/ContinentalEnterprises.shtml

    Just a place to look

  16. Awww darn. I write for 2 websites reviewing energy drinks, and havent recieved my C&D letter yet – should I feel slighted? ;)
    Seriously, I wish these big beverage companies would stop throwing their legal muscle around. It did not work out for Rockstar a couple months ago with their whole Michael Savage problem, suing gay blogging sites…
    Hang in there!

  17. Truth be told, I lived off of Monster energy drinks for a couple years. I loved them, cherished them. Spent way too much money on them.
    It makes me sad that they would become over zealous protectors of their brand.
    Two lawsuits in a two weeks. Sucks.
    I will no longer drink their drinks, even though I used to love them.
    You got my support guys.

  18. This is ridiculous! Fair use and right of review are obvious in this case. Keep fighting, Steve. Isn't it obvious that Hansen is damaging their brand by this? Silly stuff for them, and counterproductive for everyone except the lawyers.

  19. I don't believe I will partake in any more monster products after this bs. Even though Java monsters are damn tasty. Oh well, so sad, evil lawyers sway my business more than flavor.

  20. I fully expect to be embroiled in one of these at some point in the future. These companies simply don't think these things through. I've had similar legal problems with doing reviews of products that have trademarks associated with them and I find the whole thing tiresome & ruins the good name of product makers.

  21. This is beyond ridiculous. Issues of fair use aside, this is a thinly-veiled effort by Monster to shake down reviewers who gave their product a less-than-gushing review.

    I just got this story dumped into the green queue on Fark. The social media floodgates have been opened…

  22. Wow Monster, way to go! Attack a beverage review site simply because they didn't give you a positive review.

    Stop using scare tactics and just allow people to not like your product if they don't like it.

  23. I forgot to mention, I have an IP lawyer (based here in SoCal) if you do need to consult something. She's pretty well briefed on this internet stuff.

  24. In all my years as Asistant Advising to the Secretary of Justice at the Nigeria, I have rarest encountered such missingly obtuse action. Were it to send my client $10,000 worth of Monster beverages, the happy conclusion avoiding zombies per retail hour would be delivered at your convenientest pleasure to lift up the restraintment on your speech freedoms.

    Yours Truly and Endaringly,

    Joseph Embongo

  25. I like how she claims privilege in the second letter. While she's A attorney, she's not YOUR attorney, and even if she was, the right to breach privilege belongs to the client.

  26. This type of bullying and intimidation may in fact itself be illegal under various state and federal laws. I'd let them keep pushing and pushing, then file a harassment complaint against them, file a complaint with the federal trade commission as well as file complaints with the bar associations where these bubblegum lawyers are licensed.

  27. You are in the right, and in the wrong legally… You may post personal opinions on a product and give notice the copyright of the item belongs to a certain company… but when you start using images of the products and editing them to suit your needs such as the monster vs bevreview image above, you are now crossing the legal line as to what you may do… since the images and rights to it are copyrighted by them and you must receive permission to use them and redistribute them… So yes they are a bunch of jags but they do have some legal ground to demand you stop "advertising" their product using their copyrighted material.

    In the end there is a lot of fuzzy gray legalities online, but the most often used tactic is their legal team thats already paid for by the year, to file legal action against you and force you to spend thousands upon thousands you haven't already budgeted for or expected to spend in your life to defend yourself legally…. its the old we may not be able to stop you legally, but we've already spent the money hiring this firm so we're going to make you spend money to stop us. Thats why large corporations and insurance companies want to force you to sue them for things, because often you can't afford the expenses to have your rights upheld while they've already budgeted the money ever year.

  28. Chill out dude, it's just lawyers trying to do their jobs. If you own a trademark (as I do for one product) you are required to make sure no one is using your mark to make money. I.e., I'm not allowed to sell a Coca-Cola t-shirt without Coke's permission. As long as you did not sell this Moster drink without permission, then you should be fine. Just send them a note saying, we didn't use your mark for profit, and they should go away. If not, you have a great harrassment suit you could file – ask and lawyer in the biz. Keep up the good work and don't sweat it too much.
    m.

  29. Matthew you say "but when you start using images of the products and editing them to suit your needs such as the monster vs bevreview image above" But the original offending image in question is a photo of the can that bevreview bought and not an altered image. Where does that fall? As a fellow reviewer I always use my own photos 99% of the time unless a company request me to use one of theirs. I have often wondered about a lot of sites that borrow official images from company websites without permission. Bevreview always takes their own cool outdoor photos for their reviews

  30. all it takes is some controversy to get some traffic! look at these comments!

    great review of the emails.

  31. Granolacruncher says:

    Locally owned stores have started pulling Hansen products from the shelf in Vermont. Nice backlash! I think I'll just enjoy my Vermonster beer now……

  32. Matthew – I believe you are incorrect in this instance. BevReview creates a derivative work of a trademarked item. Their intention is for editorial use (criticism). The website never claims copyright/trademark/registration over the material depicted.

    If BevReview had taken their illustrating images from the Monster website, then there might be a claim (but again, kinda fair use in this instance so long as it's properly attributed).

    It's just like the NYTimes posting photos of the new Fords & Toyotas at the Auto Show – they're not selling the cars, they're using the images as an illustration of the object in question.

  33. this just in!
    Monster suing actual monster now! Ugh – poor hansens is creating a world of PR hurt for themselves…
    http://www.examiner.com/examiner/x-281-Caffeine-Examiner~y2009m10d16-Update-Monster-energy-drink-sues-actual-monster

  34. AMAZING. You didn't like their product and said so (and, in my opinion, you did so without using overly negative language in your review). How dare you!?!?

    Just keep posting what they send you to show everyone how badly Continental Enterprises and Hansen's have no idea how to navigate social media.

    I'm interested to see how long it take Continental Enterprises and Hansen's to remember the first rule of being in a hole: stop digging.

  35. The point I made about images is there is a difference from the one image he self-took, versus the edited and changed image that is now a logo for something on this website… it went from being a legal right to use a picture you took without making enhancements, to using a trademarked image and making modifcations to suite your needs of a title image showing a "monsters vs bevreview" image… thats where I am saying the legal line gets fuzzy since you can't start using their property for your gain, being this website battle. Originally I saw no reason for them to say he was mis-using the image he took because it was his, but now edited it and using just the logo is incorrect… its like back in the cola war days pepsi and coke were BOTH stopped from using eachothers images in promotional material for the taste test wars because of this.

  36. Anonymous says:

    IAAL, and the claim is boooooo-gus. They mean it, but they're off their rockers. Sounds like some scam-baiting is in order. Find out how much you can get them to pay you for the loss of goodwill you suffer when you sacrifice the integrity of your site by altering it, and all the hours you'll have to spend doing it. Go ahead, have some fun!

  37. terabitman says:

    You guys have a firm standing here with fair use – this is also clearly a form letter, you aren't selling anything. If I were in your place, my only response would be a link to this article, and an image of a middle finger. Don't give in to corporate bullies!

  38. This is unreal. I can understand the protection of a name, but this seems to be (as was mentioned) simply a way to stop the flow of information. Not cool Hansen. Consider me an X customer.

  39. Ridiculous! Stay strong!

  40. I have to say that as a fellow review blogger I am horrified by this whole situation. I will not be buying Hansen products for personal use and certainly not for review from here on out.

  41. If I worked for Hansen, I don't think I'd want you to "advertise" for me. . . . I don't think you're selling many of their drinks with your review :-) ! I'd fire ya', not sue ya :-)

    Sorry for the hardship–I definitely think it falls under fair use laws, and since they sent you sodas as samples to review. . . I don't see what they're thinking. Hope it goes well for you in this.

  42. You should accuse them of threatening you and intimidation. If this is the real Hansen company sue them.

Trackbacks

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