[PPT] - MONS MONSTER ENER TER ENERGY V V. INTEGRA INTEGRATED SUPPL ED PowerPoint Presentation

SLIDE 1

MONS MONSTER ENER TER ENERGY V V. INTEGRA INTEGRATED SUPPL ED SUPPLY NET NETWORK ORK

SLIDE 2

Mons Monster Ener ter Energy’s Mar y’s Marks and T s and Trade Dress - ade Dress - Since 2002 ince 2002

Ex. 1328 at MEC003102

Ex.1251 at MEC005396

2

SLIDE 3

Jur Jury Ins Instruction No. 1 ruction No. 15:

“The trademark laws balance three often-conflicting goals: (1) protecting the public from being misled about the nature and source of goods and services, so that the consumer is not confused or misled in the market; (2) protecting the rights of a business to identify itself to the public and its reputation in offering goods and services to the public; and (3) protecting the public interest in fair competition in the market. The balance of these policy objectives vary from case to case, because they may often

conflict. Accordingly, each case must be decided by examining its specific facts and

circumstances, which you are to judge.”

3

SLIDE 4

Mons Monster Ener ter Energy Follows the R y Follows the Rules les

4

SLIDE 5

Mons Monster Ener ter Energy Follows the R y Follows the Rules les

5

SLIDE 6

Mons Monster Ener ter Energy Follows the R y Follows the Rules les

6

SLIDE 7

ISN ISN

7

SLIDE 8

Lik Likelihood of Confusion F lihood of Confusion Fact ctor

rs

1. 1. Strength of Strength of Mons Monster Ener ter Energy’s mar y’s marks and tr s and trade dress ade dress 2. ISN’s use of the mark and trade dress on same, related or complementary goods 3. Similarity of the marks and trade dress 4. Evidence of actual confusion 5. ISN’s intent in selecting the mark 6. Marketing/advertising channels overlap 7. Consumer’s degree of care 8. Product line expansion

8

SLIDE 9

1.

1. Strength of Mons

trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress

$1 $17 billion 7 billion in U.S. sales from 2002-2017

(Sacks Testimony, Nov. 1, 2018 Trial at 344:15-20; 384:13-18)

$8 billion $8 billion in U.S. sales of green and black cans (2002-2017)

(Sacks Testimony, Nov. 1, 2018 Trial at 344:21-345:3)

8 billion 8 billion green and black cans sold in the U.S.

(Sacks Testimony, Nov. 1, 2018 Trial at 345:13-17)

$1 $139 million 39 million in revenue from Monster premium items

(Sacks Testimony, Nov. 1, 2018 Trial at 353:9-14)

9

SLIDE 10

1.

1. Strength of Mons

trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress

Ex. 1256 (2018 SocialBakers Report)

10

SLIDE 11

1.

1. Strength of Mons

trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress

Helmets Helmets

Ex. 1850

Moto Motorcycles ycles

Ex. 1322

RC RC C Cars

Ex. 1198 at MEC01622

Wheels Wheels

Ex. 1503 at MEC040016

Decals Decals

Ex. 1331 at MEC004494

Gloves Gloves

Ex. 1845 / 1815-04

Tool Boxes

ol Boxes
Ex. 1677

11

SLIDE 12

Bac Backpac packs s

Ex. 1773

Hats Hats

Ex. 1453 at MEC024844

1.

1. Strength of Mons

trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress

Be Bever verageware geware

Ex. 1453 at MEC024849 / 1835

Clothing Clothing

Ex. 1365 at MEC016861

Bott Bottle Opener le Openers

Ex. 1359 at MEC016600

Br Bracelet acelets s

Ex. 1331

Refriger frigerator ators s

Ex. 1331 at MEC004472

Lan Lanyar ards ds

Ex. 1331

12

SLIDE 13

1.

1. Strength of Mons

trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress

FOR FORTUNE MA MAGAZINE ZINE

Top 100 Fastest Growing Company, Sept. 2005

See Ex. 1328 at MEC003043

FORBES MA FORBES MAGAZINE ZINE

#1 Small Company, Oct. 2005

See Ex. 1328 at MEC003042 See Ex. 1328 at MEC003045

FORBES MA FORBES MAGAZINE ZINE

#2 Best Small Company, Oct. 2006

See Ex. 1328 at MEC003044

BUSINESS WEE BUSINESS WEEK

#2 Company to Watch, June 2006

See Ex. 1328 at MEC003046

FOR FORTUNE MA MAGAZINE ZINE

#2 Fastest Growing Company, Sept. 2006

See Ex. 1249-1

THE W THE WALL LL S STREET JOURN REET JOURNAL

A Real Advertising Vehicle, June 2003

13

SLIDE 14

1.

1. Strength of Mons

trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress

See Exs. 1321; 1322; 1334 at MEC005472, MEC005479, and MEC005496; and1343 at MEC012487

14

SLIDE 15

Q. When did you first become aware of Monster Energy? A. I’ve always known that Monster Energy existed, I guess. I don’t know. I don’t know exactly when. Q. In fact, in your deposition you said you think everybody knows of Monster Energy? A. That’s right. Probably. Yeah.

1.

1. Strength of Mons

trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress

Darlene Lott, Darlene Lott, Owner of SE Sales

Nov. 6, 2018 Trial

at 1278:18-24 15

SLIDE 16

Q. How did you become aware of Monster Energy? A. Motorsporting really. I'm not really an energy drinker, but in the business, you see them sponsoring all the stuff all the time. My son is in NASCAR, so there is the NASCAR car. * * * “But like I said, its mostly when we go to an event we see you guys posting and sponsoring. And the TV, you know, you guys sponsor a lot of, you know, automotive related things, Motocross […] I've seen you guys everywhere to be honest.”

1.

1. Strength of Mons

trength of Monster Ener ter Energy’s Mar y’s Marks and s and Trade Dress ade Dress

Andr Andrew Mar Markows

wski,

i, Mechanic for Victory Automotive

Nov. 5, 2018 Trial

at 981:14-982:3 16

SLIDE 17

Lik Likelihood of Confusion F lihood of Confusion Fact ctor

rs
1. Strength of Monster Energy’s marks and trade dress

2.

2. ISN’s use of the mar

ISN’s use of the mark and tr and trade dress on same, related or ade dress on same, related or complement complementar ary goods y goods

3. Similarity of the marks and trade dress
4. Evidence of actual confusion
5. ISN’s intent in selecting the mark
6. Marketing/advertising channels overlap
7. Consumer’s degree of care
8. Product line expansion

17

SLIDE 18

2.

2. ISN’s Use of the Mar

ISN’s Use of the Mark and and Trade Dress on ade Dress on Same, Same, Related or lated or Complement Complementar ary Goods y Goods

Ex. 177
Ex. 149-A
Ex. 147
Ex. 159
Ex. 1838
Ex. 1845
Ex. 1453
Ex. 1680
Ex. 1331

ISN ISN Mons

nster Ener

ter Energy

Ex. 1453

18

SLIDE 19

2.

2. ISN’s Use of the Mar

ISN’s Use of the Mark and and Trade Dress on ade Dress on Same, Same, Related or lated or Complement Complementar ary Goods y Goods

HOT R HOT ROD RA D RACING (“NH CING (“NHRA”)

Ex. 1328 at MEC003064

STOCK CAR RA OCK CAR RACING (“N CING (“NASCAR”) SCAR”)

Ex. 1590 at MEC050749

MO MOTOCR CROSS RA OSS RACING CING

Ex. 1198 at MEC001635

SUPER SUPERCROSS RA SS RACING CING

Ex. 1680 at MEC064687

OFF OFF-ROAD RA RACING CING

Ex. 1581 at MEC049940

RALL RALLY CAR RA Y CAR RACING CING

Ex. 1233-13 at MEC009474

19

SLIDE 20

2.

2. ISN’s Use of the Mar

ISN’s Use of the Mark and and Trade Dress on ade Dress on Same, Same, Related or lated or Complement Complementar ary Goods y Goods

Ex. 1334 at MEC005440
Ex. 1174

20

SLIDE 21

Lik Likelihood of Confusion F lihood of Confusion Fact ctor

rs
1. Strength of Monster Energy’s marks and trade dress
2. ISN’s use of the mark and trade dress on same, related or

complementary goods 3.

3. Similar

Similarity of the mar ty of the marks and tr s and trade dress ade dress

4. Evidence of actual confusion
5. ISN’s intent in selecting the mark
6. Marketing/advertising channels overlap
7. Consumer’s degree of care
8. Product line expansion

21

SLIDE 22

3.

3. Similarity of the Mar

Similarity of the Marks and T s and Trade Dress ade Dress

See Exs. 127 at ISN001601; 147 / 178; 159 / 159-A; 176 at MEC018564; 177 at MEC018492; 177 at MEC018497; 329; 293; 149-A; 1207 at MEC024108; 1251 at MEC005396; 1365 at MEC016861; 1453 at MEC024849 / 1835; 1581 at MEC049940; 1845 / 1815-04; 1581 at MEC049940; 1198 at MEC01622; and 1850

22

SLIDE 23

3.

3. Similarity of the Mar

Similarity of the Marks and T s and Trade Dress ade Dress

Ex. 407
Ex. 1837 at MEC066293
Ex. 1837 at MEC066305
Ex. 1837 at MEC066275
Ex. 1837 at MEC066276
Ex. 407

23

SLIDE 24

Lik Likelihood of Confusion F lihood of Confusion Fact ctor

rs
1. Strength of Monster Energy’s marks and trade dress
2. ISN’s use of the mark and trade dress on same, related or

complementary goods

3. Similarity of the marks and trade dress

4.

4. Evidence of actual confusion

Evidence of actual confusion

5. ISN’s intent in selecting the mark
6. Marketing/advertising channels overlap
7. Consumer’s degree of care
8. Product line expansion

24

SLIDE 25

Q. And when you first saw the toolbox and the screwdriver, did you believe the company that had put them out had a business connection or affiliation with Monster Energy Company? A. I assumed there was some kind of connection. I mean, they have -- you know, the green was the big thing. The green and the word "Monster." Monster is green, you know.

4.

4. Evidence of

Evidence of Actual Confusion Actual Confusion

Chris Chris Nalven, Nalven, Mechanic for Levy’s Imperial Tire

Nov. 5, 2018 Trial

at 964:19-25 25

SLIDE 26

Q. When you first saw Monster tools, did you think that the Monster tools may have had any type of business connection

r affiliation with Monster Energy?

A. I absolutely did.

4.

4. Evidence of

Evidence of Actual Confusion Actual Confusion

Mike Beasley Mike Beasley, Ethridge Auto Center

Nov. 5, 2018 Trial

at 974:24-975:2 26

SLIDE 27

4.

4. Evidence of Actual Confusion

Evidence of Actual Confusion

Ex. 307
Ex. 322

YouTube comment: “Monster Tools - Tool Dealer Expo 2017 Booth Tour” Facebook comment: “Monster MST10175 Foldable LED Worklight Review”

27

SLIDE 28

“You Can’t Drink a

u Can’t Drink a Wrenc

ench”

28

SLIDE 29

Q. So when you say you were -- concern was on the hat, what was your concern specifically? A. I thought that it looked very similar to Monster Energy hats. * * * Q. And what did Joe [Knight] say about that? A. We just laughed about it. I mean, we didn't know the mag -- again, we weren't privy to trademarks and how that all worked. We just -- we just laugh -- I mean, it was, wow. Kind of shocked.

4.

4. Evidence of Actual Confusion

Evidence of Actual Confusion

Matthew River Matthew Rivera, Former ISN Category Manager

Nov. 2, 2018 Trial

at 875:23-876:1 and 893:3-7 29

SLIDE 30

4.

4. Evidence of Actual Confusion

Evidence of Actual Confusion

“Monster energy drinks” ID #2424 “Monster energy drinks” ID #2424 “looks like the energy drink maker” ID #2573 “looks like the energy drink maker” ID #2573

“some chinese mass production company, probably produced by monster drink company as advertising/promo”

ID #2424

“some chinese mass production company, probably produced by monster drink company as advertising/promo”

ID #2424 “energy drinks” ID #2354 “energy drinks” ID #2354 “ENERGY DRINK” ID #4539 “ENERGY DRINK” ID #4539 “Monster energy drink” ID #4550 “Monster energy drink” ID #4550 “Energy Drinks” ID #4695 “Energy Drinks” ID #4695 “energy drinks” ID #5037 “energy drinks” ID #5037 “beverage company” ID #6449 “beverage company” ID #6449

PDX 7 PDX 6

Ex. 1069

30

SLIDE 31

Lik Likelihood of Confusion F lihood of Confusion Fact ctor

rs
1. Strength of Monster Energy’s marks and trade dress
2. ISN’s use of the mark and trade dress on same, related or

complementary goods

3. Similarity of the marks and trade dress
4. Evidence of actual confusion

5.

5. ISN’s intent in selecting the mar

ISN’s intent in selecting the mark

6. Marketing/advertising channels overlap
7. Consumer’s degree of care
8. Product line expansion

31

SLIDE 32

5.

5. ISN’s Int

ISN’s Intent in Selecting the Mar nt in Selecting the Mark

Ex. 1596 at MEC050980
Q. Approximately how many

people from ISN do you honestly believe went to that trade show in 2010?

A. 2010? I have no idea.
Q. Can you give me a rough estimate
f the number of people?
A. 15.

Pilkenton Testimony,

Nov. 14, 2018

32

SLIDE 33

5.

5. ISN’s Int

ISN’s Intent in Selecting the Mar nt in Selecting the Mark

Ex. 167
Ex. 168

“So they -- they were all either given to customers, they were used as sales contest to where we would use them to -- to give to our salespeople. So primarily it -- it was sales and customers.”

Rivera Testimony,

Nov. 2, 2018 Trial at 860:15-18

“It was another thing that was for promotional use that I recall as being used as a giveaway.”

Rivera Testimony,

Nov. 2, 2018 Trial at 862:1-2

33

SLIDE 34

5.

5. ISN’s Intent in Selecting the Mar

ISN’s Intent in Selecting the Mark

Pantone

30 305

Pantone

31 313

Pantone

38 385

Pantone

37 377

Pantone

36 369

Pantone

36 361

Pantone

35 353

Pantone

34 345

Pantone

33 337

Pantone

32 329

Pantone

32 321

Pantone

39 393

Pantone

30 306

Pantone

31 314

Pantone

38 386

Pantone

37 378

Pantone

37 370

Pantone

36 362

Pantone

354 354

Pantone

34 346

Pantone

33 338

Pantone

33 330

Pantone

32 322

Pantone

39 394

Pantone

30 307

Pantone

31 315

Pantone

38 387

Pantone

37 379

Pantone

37 371

Pantone

36 363

Pantone

35 355

Pantone

34 347

Pantone

33 339

Pantone

33 331

Pantone

32 323

Pantone

39 395

Pantone

30 308

Pantone

38 388

Pantone

38 380

Pantone

37 372

Pantone

36 364

Pantone

35 356

Pantone

34 348

Pantone

34 340

Pantone

33 332

Pantone

32 324

Pantone

31 316

Pantone

39 396

Pantone

30 309

Pantone

38 389

Pantone

38 381

Pantone

37 373

Pantone

36 365

Pantone

35 357

Pantone

34 349

Pantone

34 341

Pantone

33 333

Pantone

32 325

Pantone

31 317

Pantone

39 397

Pantone

31 310

Pantone

39 390

Pantone

38 382

Pantone

37 374

Pantone

36 366

Pantone

35 358

Pantone

35 350

Pantone

34 342

Pantone

33 334

Pantone

32 326

Pantone

31 318

Pantone

39 398

Pantone

311 311

Pantone

39 391

Pantone

38 383

Pantone

36 367

Pantone

35 359

Pantone

35 351

Pantone

34 343

Pantone

33 335

Pantone

32 327

Pantone

31 319

Pantone

39 399

Pantone

31 312

Pantone

40 400

Pantone

39 392

Pantone

38 384

Pantone

36 368

Pantone

36 360

Pantone

35 352

Pantone

34 344

Pantone

33 336

Pantone

32 328

Pantone

32 320

Pantone

37 375

Pantone

37 376

ISN

34

SLIDE 35

Lik Likelihood of Confusion F lihood of Confusion Fact ctor

rs
1. Strength of Monster Energy’s marks and trade dress
2. ISN’s use of the mark and trade dress on same, related or

complementary goods

3. Similarity of the marks and trade dress
4. Evidence of actual confusion
5. ISN’s intent in selecting the mark

6.

6. Mar

Marketing/adver ing/advertising c ising channels overlap annels overlap

7. Consumer’s degree of care
8. Product line expansion

35

SLIDE 36

Q. So would you agree that there’s an overlap in the channels of

distribution for energy drinks and tools?

A. Yeah.

6.

6. Mar

Marketing/Adver eting/Advertising Channels Overlap tising Channels Overlap

Don Barr Don Barry, ISN’s Chief Commercial Officer

Nov. 5, 2018 Trial

at 947:19-21 36

SLIDE 37

Q. So you've seen Joe sell ISN's Monster-branded tools on his

truck?

A. I have.
Q. And you've also seen Joe sell Monster Energy drinks on his

truck?

A. I have.

6.

6. Mar

Marketing/Adver eting/Advertising Channels Overlap tising Channels Overlap

Matthew River Matthew Rivera, Former ISN Category Manager

Nov. 2, 2018 Trial

at 885:23-886:2 37

SLIDE 38

Q. And have you ever observed another mechanic purchasing Monster Energy drinks from a mobile tool truck? A. Yes. Q. How -- how many times have you seen another mechanic purchase a Monster Energy drink from a mobile tool truck? A. I mean, probably as much as I do. I -- I mean, a lot. Yeah. Q. It's a common occurrence? A.

Yes. There you go. I like that one better. Statement -- that's a better

statement.

6.

6. Mar

Marketing/Adver eting/Advertising Channels Overlap tising Channels Overlap

Chris Chris Nalven, Nalven, Mechanic for Levy’s Imperial Tire

Nov. 5, 2018 Trial

at 959:9-19 38

SLIDE 39

Q. Is it correct that, while you were operating the

Snap-on truck, you sold Monster Energy drinks to automotive technicians and mechanics?

A. Yes.

6.

6. Mar

Marketing/Adver eting/Advertising Channels Overlap tising Channels Overlap

Ronald Hyre,

nald Hyre,

Former Tool Truck Owner

Nov. 2, 2018 Trial

at 831:8-11 39

SLIDE 40

Lik Likelihood of Confusion F lihood of Confusion Fact ctor

rs
1. Strength of Monster Energy’s marks and trade dress
2. ISN’s use of the mark and trade dress on same, related or

complementary goods

3. Similarity of the marks and trade dress
4. Evidence of actual confusion
5. ISN’s intent in selecting the mark
6. Marketing/advertising channels overlap

7.

7. Consumer’s degree of

Consumer’s degree of care care

8. Product line expansion

40

SLIDE 41

Q. When you were selling tools for your mobile tool truck, were

your customers fairly thoughtful in the purchase of their tools,

r would you consider it a -- an impulse buy?
A. Both. Just depending on what -- what they were needing or what

they were looking at.

7.

7. Consumer’s Degree of Care

Consumer’s Degree of Care

Ronald Hyre,

nald Hyre,

Former Tool Truck Owner

Nov. 2, 2018 Trial

at 839:5-9 41

SLIDE 42

Lik Likelihood of Confusion F lihood of Confusion Fact ctor

rs
1. Strength of Monster Energy’s marks and trade dress
2. ISN’s use of the mark and trade dress on same, related or

complementary goods

3. Similarity of the marks and trade dress
4. Evidence of actual confusion
5. ISN’s intent in selecting the mark
6. Marketing/advertising channels overlap
7. Consumer’s degree of care

8.

8. Pr

Product line expansion

duct line expansion

42

SLIDE 43

8.

8. Pr

Product Line Expansion

duct Line Expansion

43

Ex. 269

2016 Catalog 259 SKUs

Ex. 270

2017 Catalog 367 SKUs

Ex. 1837

2018 Catalog 399 SKUs

Ex. 177

2016 Catalog 302 SKUs

Ex. 266

2012 Catalog 34 SKUs

Ex. 175

2013 Catalog 62 SKUs

Ex. 268

2014 Catalog 72 SKUs

Ex. 176

2015 Catalog 231 SKUs

SLIDE 44

8.

8. Pr

Product line expansion

duct line expansion

Ex.176

PDX 7

Ex. 177
Ex. 111
Ex. 270
Ex. 270

Ex.1838

44

SLIDE 45

ISN’s Missing Witnesses ISN’s Missing Witnesses

No mechanics No mobile tool dealers No survey expert No damages expert No former ISN’s employees No third parties of any kind No Thomas Kautz

45

SLIDE 46

ISN’s Half Measures Ac ISN’s Half Measures Acknowledge Guilt knowledge Guilt

 Stopped selling snacks  Stopped using “feed the beast”  Stopped selling 5-hour energy drink  Selected alternative brand names in event they lose trial  Took down YouTube promotional video after opening statements  Pilkenton orders take down of website

46

SLIDE 47

Punitive Damages – Punitive Damages – Ins nstruction #3 truction #31 1

“The purposes of punitive damages are to punish a wrongdoer for the conduct that harmed [Monster Energy] and to discourage similar conduct in the future” If you find malice, oppression, OR fraud Amount sufficient to fulfill the purposes of punitive damages Consider the “degree of reprehensibility of ISN’s conduct” Sufficient to Punish and Discourage Similar Conduct

47

SLIDE 48

ISN Deceived: ISN Deceived: Consumer Consumers

Created Confusion Among Consumer Created Confusion Among Consumers: s:

48

Conceal Sour Conceal Source of ISN Mons ce of ISN Monster Pr ter Products

ducts

“Monster Mobile is the brand that they're selling. And it would be total confusion to have Integrated Supply Network on the back of that product. Also, it does no

good. One, we don’t want people contacting us.”
Nov. 14, 2018

SLIDE 49

“The factory loaded the pallets with your Monster brand in the middle of the container in hopes of avoiding any visual inspection”

49

ISN Deceived: ISN Deceived: Chinese Cus Chinese Customs

ms
Ex. 239
Ex. 239

SLIDE 50

ISN’s Acts Deser ISN’s Acts Deserve Punishment e Punishment

Ex. 237

ISN’s Vice Presi ISN’s Vice President & ent & Gener General l Manager Manager ISN’s Chief ISN’s Chief Commer Commercial Of l Officer cer ISN’s CEO ISN’s CEO 50

SLIDE 51

ISN’s Acts Deser ISN’s Acts Deserve Punishment e Punishment

Ex. 1063
Ex. 1837
Ex. 1837
Ex. 1837
Ex. 1837
Ex. 1063

Mons Monster Only (af ter Only (after “adding Mobile”) er “adding Mobile”)

51