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Estta627719 09/17/2014 in the United States Patent And Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA627719 Filing date: 09/17/2014 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91199986 Party Defendant Monster Energy Company Correspondence MATTHEW S BELLINGER Address KNOBBE MARTENS OLSON & BEAR LLP 2040 MAIN STREET, FOURTEENTH FLOOR IRVINE, CA 92614-8214 UNITED STATES [email protected], [email protected], [email protected], [email protected] Submission Other Motions/Papers Filer's Name Matthew S. Bellinger Filer's e-mail [email protected], [email protected] Signature /Matthew S. Bellinger/ Date 09/17/2014 Attachments 2014-09-17-FINAL DECL OF BROADHURST IN SUPP OF APP'S MSJ- HANBEV.921M.pdf(104624 bytes ) BROADHURST DECL EXHIBIT 1 PART 1 OF 5 DEC 11, 2013 REPORT-HAN- BEV.921M.pdf(1456221 bytes ) BROADHURST DECL EXHIBIT 1 PART 2 OF 5 DEC 11, 2013 REPORT-HAN- BEV.921M.pdf(930856 bytes ) BROADHURST DECL EXHIBIT 1 PART 3 OF 5 DEC 11, 2013 REPORT-HAN- BEV.921M.pdf(5490992 bytes ) BROADHURST DECL EXHIBIT 1 PART 4 OF 5 DEC 11, 2013 REPORT-HAN- BEV.921M.pdf(4764366 bytes ) BROADHURST DECL EXHIBIT 1 PART 5 OF 5 DEC 11, 2013 REPORT-HAN- BEV.921M.pdf(2663953 bytes ) TTAB Opposition No. 91199986 (Parent) USA Nutraceuticals Group, Inc. v. Monster Energy Company EXHIBIT 1 PART 1 OF 5 Declaration of Norman N. Broadhurst in Support of Applicant’s Motion for Summary Judgment TTAB Opposition No. 91199986 (Parent) USA Nutraceuticals Group, Inc. v. Monster Energy Company Expert Report of Norman Broadhurst I. Statement of work At the request of Knobbe, Martens, Olson & Bear, counsel for Monster Energy Company (“Monster Energy”), I provided my opinion on whether the term “beast” is a commonly used term in the nutritional supplements industry and marketplace. II. Statement of qualifications I am the President of Keith N. Thomas Design, I nc., a strategic branding, packaging and visual communications agency serving consumer products companies. In this capacity I direct client services, brand positioning and creative direction. I am also the founder and President of Channel Marketing Resources, I nc., an international consumer products marketing and sales development consulting firm. I have over 30 years of consumer products retail marketing and package communications experience as a senior marketing executive and operating officer. During my career I have developed and directed fourteen national product introductions of consumer products that today generate over $1.5 billion in annual sales. I have held a wide range of corporate leadership roles from marketing start–ups to leading a $500 million operation (attachment 1). President – Keith N. Thomas Design, I nc. President/ CEO – Channel Marketing Resources, I nc. President/ COO – Kerr Glass Manufacturing Company– Consumer Products Division President/ CEO – The Famous Amos Cookie Company Vice–President, Marketing – Beatrice Companies/ Hunt– Wesson (nka ConAgra) Director, Marketing – The Coca–Cola Company, Foods Division New Products Manager – Colgate–Palmolive– Riviana Foods Division As President of Keith N. Thomas Design I direct new product brand development and food, beverage and consumer products packaging for a long list of client firms. Page | 1 Exhibit 1 Page 1 of 253 Declaration of Norman N. Broadhurst in Support of Applicant’s Motion for Summary Judgment TTAB Opposition No. 91199986 (Parent) USA Nutraceuticals Group, Inc. v. Monster Energy Company I have an MBA from Golden Gate University in San Francisco and a BS from California State University at Chico. I I I . I nformation relied upon A list of the documents and things I relied upon in forming my opinions is attached as Attachments 2 thru 5. I also relied upon readings and perspectives noted in this report and visual observations of nutritional supplements and other consumer products as found at retail and visualized from Internet industry postings. I also reviewed documents filed with the U.S. Patent and Trademark Office in connection with the four current consolidated trademark oppositions, namely the Notices of Opposition filed by Beast Sports and the Answers filed Monster Energy Company. I also reviewed documents produced by Beast Sports and information about Beast Sports and its products found on Beast Sports’ website, www.beastsports.com. I also reviewed the discovery responses served by the parties in the oppositions. These elements were evaluated based on my background and knowledge from over 30 years of consumer marketing experience in developing, introducing and branding consumer products for the retail market. I V. Major opinions to be expressed It is my opinion that the word “beast” has been broadly and commonly used for many years in bodybuilding, sports and related activities to describe an aggressive, intense demeanor of both amateur and professional athletes. The word “beast” is commonly used to enhance the imagery of products and market campaigns to convey an implication of strength, energy or flavor. It is also my opinion that the registration of the word “beast” within the Monster Energy applied for trademark(s) would not cause a likelihood of confusion or cause mistaken identity of the origin of the trademarks with other “beast” marks, including those of Beast Sports. Because the term “beast” has been used commonly for many years in the sports activities market and is presently used by several different companies and on products as a general product and marketing descriptor, it does not identify any one company. I understand that I may be called to present expert testimony including testimony in rebuttal to applicant’s case and rebuttal to testimony of any witness, particularly with respect to the matters addressed in this report. If I am called to testify, I expect to testify about some or all of the matters set forth in this report and in any supplemental or rebuttal reports. Page | 2 Exhibit 1 Page 2 of 253 Declaration of Norman N. Broadhurst in Support of Applicant’s Motion for Summary Judgment TTAB Opposition No. 91199986 (Parent) USA Nutraceuticals Group, Inc. v. Monster Energy Company A. The word “beast” is a commonly used term to describe exercise and/ or sports performance behavior The word “beast” has been broadly used for several years in connection with sports and related activities to describe an aggressive, intense demeanor of both amateur and professional players. The term “beast” is a common term or metaphor used to describe aggressive, over–the–top behavior or intensity especially associated with sports, body building and related activities. It is used in the same fashion by the trade, media and by consumers when describing intense activities as shown in the attached exemplary articles (attachment 2). The following are specific examples: A.1 (a): The Arizona Republic 8/22/12 – 10 reasons it’s good for youth to play multiple sports. “My players learn how to play more aggressively in basketball after playing a season of football. (a beast on the boards.)” A.1 (b): Detroit Free Press 8/16/12 – Jeff Daniels stops by camp, likes chances. “They’re beasts and they’re fast as a deer.” A.1 (c): The Gazette (Colorado Springs, CO) 8/13/12 – Moments to remember from 2012 Olympics. “… She’s a beast you know. Chun said of Merleni. She meant the description as a compliment.” ’’ She tamed the wrestler she calls a beast…” A.1 (d): USA Today 8/10/12 – Bolt caps double –double in 200. “….to whom Bolt gave the nickname “The Beast” because of his fondness of brutally hard workouts.” A.1 (e): USA Today 8/3/12 – Bucs bet on high price talent. “Shiano praised the work ethic of the fourth–year quarterback…’He’s a beast of an athlete.’ Jackson said.” A.1 (f): St. Cloud Times (Minnesota) 7/26/12 – Local athletes Post and Smock ready for Olympics experience. “Rise of the Beast” Page | 3 Exhibit 1 Page 3 of 253 Declaration of Norman N. Broadhurst in Support of Applicant’s Motion for Summary Judgment TTAB Opposition No. 91199986 (Parent) USA Nutraceuticals Group, Inc. v. Monster Energy Company “Post meanwhile, first began competing in BMX racing (the sport in which she has long been nicknamed Alise the Beast)…” A.1 (g): The Sentinel Echo (London, Kentucky) 5/9/12 – Multi– talented Proffitt chooses two sports at Cumberlands “She works so hard, she is just a strong, beast of an athlete”. A.1 (h): The Salt Lake Tribune 5/4/12 – Prep golf: Ogden has a “Beast” on its hands in freshman Xena Motes “And, yes, Motes loves her nickname, handed to her at Mount Ogden Junior High, “The Beast”. “They started calling me The Beast because I play a lot of sports and I’m really good at it.” Motes said. “You’re such a beast.” “Ogden has “Beast” on its hands. This tiger has teeth” A.1 (i): The Shawnee News–Star 5/3/12 – Brandon Smith “Michael Phelps. He is a beast.” A.1 (j): Orlando Sentinel 4/14/12 – LB Shipman eager to again put aggressive foot forward. “UCF linebacker Ray Shipman was a beast on the football field…” “Shipman has worked hard to get back into beast mode.” A.1 (k) Boston Herald 3/29/12 – Aviles takes a weight and see approach “The guy is a beast, said McDonald, who is no stranger to the weight room.” A.1 (l): Wisconsin State Journal (Madison, Wisconsin) 3/1/12 – ‘The Beast’ eyes Big Ten challenge. “She’s a big kid, probably weights around 220, and she doesn’t mind being physical.” Branstrom said. We affectionately call her “The Beast.” …” A.1 (m): San Antonio Express–News 2/10/12 – Wrestling corner: Lumbreras: Thunderbirds’ 95–pound beast’ “She’s a 95–pound beast.” A.1 (n): The Daily Star (Oneonita, New York) – 2/9/12 – Oneonta High girls cruise to road Victory “she’s been a beast the last two games,..” Page | 4 Exhibit 1 Page 4 of 253 Declaration of Norman N.
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