Nutrition Fit 2004, Limited v Monster Energy Company [2018] NZIPOTM 19 (7 June 2018)

Monster Energy Company opposed registration of trade mark application No. 1039137 UNLEASH YOUR POWER in Class 30, owned by Nutrition Fit 2004, Limited. Monster Energy’s opposition was based on its various prior marks containing the words UNLEASH THE BEAST! or similar.

Monster Energy was unsuccessful in its opposition on all grounds, including that use of the UNLEASH YOUR POWER mark would be likely to deceive or cause confusion, and that the UNLEASH YOUR POWER mark was similar to Monster Energy’s registered marks.

As Nutrition Fit was successful in defending the opposition, it was awarded costs. However, Nutrition Fit applied for an uplift in the scale of costs, due to the manner in which Monster Energy conducted the proceeding. In particular, Nutrition Fit referred to the unnecessary length of Monster Energy’s evidence, including voluminous exhibits, and the large amount of irrelevant material contained in the evidence.

The hearing officer agreed, finding there were various examples of evidence not tailored to the issues under dispute in the opposition, which Nutrition Fit was required to review to identify any relevant evidence. The hearing officer also noted a previous decision relating to Monster Energy’s evidence in Green & Good Food Company Limited v Monster Energy Company, where Monster Energy was not awarded any costs despite being successful in the opposition, as the extraneous evidence undermined the opposition system as an efficient method for determining disputes.

As a consequence, Nutrition Fit was awarded the scale costs plus an uplift of 50 per cent.

If you would like to read the Office decision, please click here.