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Monster’s blockbuster $175 mln trademark win against Bang

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Cans of Monster energy drinks sit on display at a Sainsbury’s store in London, Britain, August 30, 2018. REUTERS/Simon Dawson

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  • Objector Vital Pharmaceuticals did not meet the high standard of proving irrationality on the part of arbitrator
  • Award one of the largest in U.S. trademark history

(Reuters) – A California federal court has upheld an arbitrator’s $175 million award for Monster Energy Co and orange-drink maker Orange Bang Inc against Bang Energy maker Vital Pharmaceuticals Inc for trademark infringement.

Vital did not meet the high standard of proving that the arbitrator’s award was “completely irrational,” District Judge Dale Fischer said in a ruling published Friday.

Monster attorney John Hueston of Hueston Hennigan said the decision “affirms one of the largest trademark infringement awards in U.S. history.”

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Vital and its attorneys did not immediately respond to requests for comment.

Rivals Monster Energy and Bang Energy are both among the best-selling energy drinks in the United States.

Orange Bang sued Vital in 2009, arguing Vital’s Bang-branded pre-workout drinks would cause consumer confusion. The companies settled the next year, allowing Vital to continue using the Bang name on “creatine-based” drinks, as well as other drinks if sold only through fitness-focused venues like gyms and vitamin shops.

Vital launched “Bang Energy RTD” in 2015, advertising it as a pre-workout energy drink with “Super Creatine.” Orange Bang teamed up with Monster to accuse Vital of breaking the settlement and violating Orange Bang’s trademark rights, arguing the drinks are not creatine-based.

Monster has separately sued Vital for false advertising in a case that is scheduled to go to trial next month.

Vital filed a 2020 lawsuit alleging Monster had wrongly “weaponized” the settlement and requested a ruling that it did not infringe.

Arbitrator Bruce Isaacs of Signature Resolution ruled for Monster and Orange Bang in April, finding Bang Energy’s drink is not creatine-based because “Super Creatine” is not actually creatine and does not raise the body’s creatine levels.

Isaacs said Vital owed $175 million in damages and a 5% royalty on worldwide sales of Bang-branded products unless it either limits U.S. sales to fitness-focused venues or stops using the Bang name entirely in 12 states including California, New York and Texas.

Vital asked the court to vacate the award, arguing Isaacs “effectively dispensed his own brand of economic justice.”

But Fischer said Isaacs “appears to have taken great care with both the factual issues and the law.”

“He produced a 177-page final award opinion that, whether correct or incorrect, grapples in good faith with the various conflicts in the case,” Fischer said.

The case is Vital Pharmaceuticals Inc v. Orange Bang Inc, U.S. District Court for the Central District of California, No. 5:20-cv-01464.

For Monster: John Hueston, Moez Kaba and Allison Libeu of Hueston Hennigan

For Orange Bang: Steven Nataupsky, Lynda Zadra-Symes and Matthew Bellinger of Knobbe Martens

For Bang Energy: Daniel Janssen, Michael Carwin, Johanna Wilbert and Josh Fleming of Quarles & Brady; Louis Dorny of Gordon Rees Scully Mansukhani

(NOTE: The case caption in this story has been corrected to reflect that Vital Pharmaceuticals is the plaintiff.)

Read more:

Monster asks court to enforce $175 mln award against Bang Energy maker

Monster Energy defeats rival’s trademark claims over low-sugar energy drinks

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Blake Brittain

Thomson Reuters

Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at [email protected]