Estta994262 08/12/2019 in the United States Patent And
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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA994262 Filing date: 08/12/2019 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91222422 Party Plaintiff Monster Energy Company Correspondence DIANE M REED AND JONATHAN MENKES Address KNOBBE MARTENS OLSON & BEAR LLP 2040 MAIN ST, 14TH FLOOR IRVINE, CA 92614 UNITED STATES [email protected], [email protected], [email protected], [email protected] 949-760-0404 Submission Testimony For Plaintiff Filer's Name Hans L. Mayer Filer's email [email protected], [email protected] Signature /Hans L. Mayer/ Date 08/12/2019 Attachments 2019-08-08 Testimony Declaration of Rodney Sacks - REDACTED - HAN- BEV.3315M.pdf(1025668 bytes ) Sacks Ex. 01 - article excerpts_Part1.pdf(5633755 bytes ) Sacks Ex. 01 - article excerpts_Part2.pdf(5530910 bytes ) Sacks Ex. 01 - article excerpts_Part3.pdf(5649660 bytes ) Sacks Ex. 02 - Amazon.com_Part1.pdf(5413450 bytes ) Sacks Ex. 02 - Amazon.com_Part2.pdf(1864078 bytes ) Sacks Ex. 03 - MEC beverage products.pdf(5231285 bytes ) Sacks Ex. 04 - 10-k excerpts_Part1.pdf(5623962 bytes ) Sacks Ex. 04 - 10-k excerpts_Part2.pdf(5636985 bytes ) Sacks Ex. 04 - 10-k excerpts_Part3.pdf(5747580 bytes ) Sacks Ex. 04 - 10-k excerpts_Part4.pdf(5317648 bytes ) HANBEV.3303M/3315M/3702M/4359M TRADEMARK IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD ) MONSTER ENERGY COMPANY, ) Opposition Nos.: 91222422 (Parent) ) 91222445 Opposer and Counterclaim Defendant, ) 91226092 ) 91228458 v. ) ) Serial Nos.: 86480573, 86480603, MAPLE LEAF SPORTS & ENTERTAINMENT ) 86480655, 86480693, 86480716, LTD. and NBA PROPERTIES, INC., ) 86480739, 86480248, 86480297, ) 86480313, 86480332, 86480362, Applicants and Counterclaim Plaintiffs. ) 86480532, 86480507, 86480488, ) 86480463, 86480434, 86480405, ) 86480388, 86641420, 86641438, ) 86641393 ) ) Marks: ) ) ) ) TESTIMONY DECLARATION OF RODNEY SACKS I, Rodney Sacks, declare as follows: 1. I am the Chairman and Chief Executive Officer of Monster Beverage Corporation and its subsidiaries including Monster Energy Company. Monster Beverage Corporation is a publicly traded company and its subsidiaries have over 3,000 employees. Monster Energy Company (“Monster”) is the Opposer in the above-identified Opposition proceedings. I have personal knowledge of the facts set forth below. If called upon and sworn as a witness, I could and would competently testify as set forth below. -1- 2. Since 1990, I have acted as, and continue to act as, the Chairman and Chief Executive Officer of Monster. In that capacity, I am responsible for, and am actively involved, on a full time basis (both directly and indirectly), in all aspects of the business including, but not limited to, product and business development, manufacturing and operations of the business, and pricing, packaging, marketing, promoting and distributing the company’s products. I am intimately involved in all business decisions relating to the development of new products, the launching and sale of products, including marketing and licensing of Monster’s trademarks, as well as expansion plans and overall U.S. and international growth strategy for Monster. I am also responsible for deciding which trademark applications to file and for dealing with all issues relating to trademark protection and enforcement. MONSTER ENERGY COMPANY - HISTORY 3. Monster is a leader in the energy drink market and develops famous brands. In 2002, Monster first sold its MONSTER ENERGY® drink, bearing its now-famous m ® (the “Claw Icon”) trademark. Monster has continuously used the Claw Icon in connection with beverages, apparel, and numerous other products and services since that time. 4. Monster has been acknowledged as a leader in the industry receiving recognition and awards including, but not limited to: “Beverage Company of the Year” by The Beverage Forum in 2004 and again in 2006 and “Large Beverage Company of the Year” in 2009; Forbes’ “Top 200 Best Small Companies” in 2000, 2004, 2005, 2006, and 2007, ranking Monster as the #1 Best Small Company in 2005 and 2007, and the #2 Best Small Company in 2006; Fortune Magazine’s “100 Fastest Growing Companies” in 2005, 2006, 2007, and 2008, ranking Monster as the #2 Fastest Growing Company in 2006 and 2007; Business Week’s “Hot Growth Companies” in 1999, 2005, 2006, and 2008, ranking Monster as the #2 Hot Growth Company in -2- 2006 and the #1 Hot Growth Company in 2008; the Annual Packaging Global Design Award in 2001 and 2002; “Liquid Refreshment Company of the Year” by Beverage World in 2012; and “One of the Most Innovative Companies” by Forbes in 2014 and 2015. Monster’s executive team has also received significant acclaim for its accomplishments, including: Beverage Forum’s 2012 Lifetime Achievement Award, which was presented to me and Monster’s Vice Chairman and President, Hilton Schlosberg and Beverage Industry’s 2011 Executive of the Year award, which was presented to me. Attached hereto as Exhibit 1 are true and correct copies of excerpts from articles in Fortune, Forbes, Beverage Industry, Soft Drinks International, Beverage World and BusinessWeek regarding Monster’s success. MONSTER ENERGY COMPANY’S TRADE MARKS 5. Monster’s brands, including its famous Claw Icon and its MONSTERTM and MONSTER ENERGY® brands used in connection with the MONSTERTM and MONSTER ENERGY® line of beverages, are well-known throughout the United States and internationally. MONSTER ENERGY PRODUCT DEVELOPMENT AND LAUNCH 6. In April 2002, my Company launched its MONSTER ENERGY® drink in 16 oz. cans. Since then, Monster’s beverage line has been tremendously successful. Sales have increased every year since the brand’s launch. Worldwide retail sales of my Company’s drinks now exceed 4 billion cans per year. Each can of the MONSTER ENERGY® beverages bears the Claw Icon. 7. By 2003, Monster’s beverages were being sold in all 50 states in gas stations, convenience stores, gyms, health food stores, independent stores, grocery stores, mass merchandisers such as Costco, Wal-Mart, and Target and drug stores such as CVS and Walgreens. Monster’s MONSTERTM line of drinks are now sold by well over 300,000 retail -3- stores all over the country. Monster’s MONSTERTM line of drinks are also sold by on-premise retailers such as bars, restaurants, and coffees shops. Monster’s MONSTERTM line of drinks are also sold online, including on amazon.com, walmart.com, and monsterarmy.com. Attached hereto as Exhibit 2 is a true and correct copy of a printout from amazon.com showing Monster’s MONSTERTM line of drinks and other Monster-branded items for sale. 8. Today, my Company sells and/or is aware of third party sales of the MONSTER energy drinks to consumers throughout the United States, and over one hundred nations and territories throughout the world. 9. Over time, Monster has expanded the range of products sold under the Claw Icon. Indeed, Monster’s product line bearing the Claw Icon includes or has included beverages such as: original Monster Energy® and Lo-Carb Monster Energy®; Monster Assault®; Juice Monster® Khaos®; Juice Monster® Ripper®; Juice Monster® Pipeline Punch®; Monster Energy® Import; Punch Monster® Baller’s BlendTM; Punch Monster® Mad Dog™; Monster Energy® Unleaded™; Monster Energy Absolutely Zero®; Monster Energy Zero Ultra®; Monster Energy Ultra Blue®; Monster Energy Ultra Red®; Monster Energy Ultra Black®; Monster Energy Ultra Citron®; Monster Energy Ultra Sunrise®; Monster Cuba-Lima®; Ubermonster®, which is a bio-activated non-alcoholic energy brew produced using brewing technology which converts sugar into organic acids; Monster Rehab® which is a line of non-carbonated energy drinks, which includes Monster’s Monster Rehab® Tea + Orangeade + Energy, Monster Rehab® Tea + Pink Lemonade + Energy, Monster Rehab® Tea + Lemonade + Energy, Monster Rehab® Raspberry Tea + Energy, and Monster Rehab® Peach Tea + Lemonade; Java Monster®, which is a line of dairy based coffee plus energy drinks; Muscle Monster®, which is a line of energy shakes; Monster Energy Extra Strength Nitrous Technology®, which is a line of energy drinks with a blend of -4- nitrous oxide and carbon dioxide to create a smoother energy drink; Caffé Monster®; Espresso Monster®; and Monster MaxxTM, among others (referred to collectively as the “MONSTER line of drinks”). Attached hereto as Exhibit 3 are true and correct copies of images of representative samples of Monster’s beverage products. 10. Monster’s packaging for each drink varies slightly, but the MONSTERTM brand remains consistent throughout the product line and the Claw Icon is prominently featured on the front of the beverage containers. MONSTER ENERGY® SALES AND REVNUE 11. Since 2002, Monster has sold over 18 billion cans bearing the Claw Icon resulting in over $40 billion in total retail sales in the United States. Worldwide retail sales currently exceed 4 billion cans per year. Monster’s sales from 2002 to 2014 of the MONSTER line of drinks totaled more than $12 billion. In just the year 2013 alone, Monster’s sales of the MONSTER line of drinks were nearly $2 billion. Attached hereto as Exhibit 4 are true and correct copies of excerpts from Monster Beverage Corporation’s Form 10-K filings with the Securities and Exchange Commission from 2002 through 2014. 12. Within ten years from launch, MONSTER™ became the number one energy drink brand in convenience stores by unit volume, the best-selling energy drink overall in the United States. As of July 2019, the MONSTER™ brand held approximately a by dollar value market share of the U.S. energy drink market. Monster now sells approximately- 2.5 billion cans of MONSTER-branded energy drinks per year in the U.S alone. Monster is now one of the most recognized brands in the world today. -5- OVERVIEW OF ADVERTISING, MARKETING AND PROMOTION Marketing Strategy 13. Monster’s marketing strategy is not conventional in that Monster does not use direct television or radio advertising to promote the Claw Icon, but through its marketing strategy, the Claw Icon receives substantial and extensive exposure on television, on the Internet, in magazines, and at live events.