Power v Beast: there's room for both in the energy drink market
Wednesday, 4 October 2017
In the competitive world of energy drink marketing, making your mark is one thing, but protecting your trade mark is another.
Monster Energy claims to Unleash The Beast!, while rival Ox says it will Unleash The Power.
Monster has told the High Court in Wellington that this would unleash confusion and deception among consumers if both were allowed.
Monster objected when Ox applied to register 'Ox Unleash The Power' as a trade mark in New Zealand.
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Californian-based Monster sells more than one million of its energy drinks in New Zealand a year.
Ox Group's main business is making and selling construction and power tools, but also has its own line of energy drink. Its trade mark, including the words Unleash The Power, is used across its range of products.
The Ox drink has so far been sold next to displays of Ox tools.
Ox launched its energy drink in Australasia in 2014 and, when the question of its trade mark was raised, it had sold 2262 cans of its drinks in New Zealand. Thousands more had been given away at trade events.
An assistant trade mark commissioner ruled against Monster's objections in February 2016, having considered the look, sound, and connotations of 'beast' as opposed to 'power'.
Monster appealed to the High Court, where Justice Karen Clark endorsed the commissioner's decision.
She thought the '!' was significant in the Monster Unleash The Beast! slogan.
'To my mind, Unleash The Beast has a more subdued connotation than Unleash The Beast!'
And in the Ox mark, the word Ox was visually dominant, she said.
Ox had decided at first to sell drinks in Australasia just using the words Unleash The Power, without the Ox prefix, to avoid provoking another energy drink giant, Red Bull, into legal action.
A trade mark is a word, phrase, symbol or design that identifies a product. Registering a trade mark helps the trade mark holder protect its brand from others trying to imitate it.