I initially intended to blog about how trademark laws largely accomplished their goal of reducing search costs for consumers. While this week’s readings brought up recent court rulings that misinterpret trademark law (the “use” of trademarks as keywords and selling ads to competitors of that trademark owner), it seemed that the laws themselves manage to limit the potentially damaging aspects – controlling language to restrict competitors – with the benefits of trademarks – conveying information about the product to consumers. And after weeks of bashing on copyright and patent laws, I wanted to believe that trademark was one area in our legal system that was more balanced and fair.

After finding out about the trademark history of Monster Cable, it became a bit more difficult to support this position. Some background should be given on Monster first. Monster Cable was founded in 1979 and primarily makes cables for audio products. They’ve expanded into making cables for other products as well, such as gaming consoles, computers, TVs, and cars. Basically, looking at their main site, you get the idea that their primary business comes from cables.  That, and for some reason, they also sell mints.

As a trademark, Monster Cable would most likely fall under the arbitrary/fanciful category since Monster has no relation to the cables themselves. As an arbitrary trademark, Monster would have strong trademark protection. At the same time, the protection arguably would not be so strong outside of cable-related products.

With this in mind, it was a surprise to find out how aggressive Monster has been in protecting its trademark on “Monster”. Monster Cable has over 70 trademarks on the generic word “Monster,” has filed over 190 actions at the PTO, and has pursued 30 lawsuits on trademark infringement. Here’s a list of some of the businesses they’ve pursued, either through lawsuits or through appeals to the PTO:

• “Monster Transmission” – a Florida company that makes automotive parts
• “Junk Food Monster” – A woman that sells tshirts that say “Junk Food Monster” on it to promote good eating habits. Her trademarks on “Crash Monster” and “Pollution Monster” promote similar good habits and have also been appealed. (Image taken from their file at the PTO)
  
• “Monster.com” – Website owned by Monster Worldwide, Inc. that offers employment-searching services.
  
•   “Slim Jim Monster” – Meat-snack sticks from ConAgra Foods.
   
• “Monster Mini Golf” – 18-hole indoor putting greens.
   

Monster Cables has also pursued large companies such as ConAgra Foods (the meat snacks above), Disney (their “Monsters, Inc” movie), and the Boston Red Sox (“Green Monster” food sold in the stadium).

Monster Cables defended its actions by stating that it had to defend its “famous” trademark since it had invested so many resources into developing the goodwill. In an open letter on their website, Monster Cables and its founder Noel Lee listed some of the trademarks that they owned in defense of their aggressive actions. Some of the trademarks were:

• “Monster” – Sporting goods
• “Monster attitude” – clothing such as sweatshirts, jackets, pants, tshirts
• “Monster music” – compact discs

I highly doubt that there was any consumer confusion between Monster meat-snack sticks and Monster cables. Given this, I didn’t expect any of these appeals or lawsuits to be very successful. Thus, it was even more surprising to find that Monster has been fairly successful at getting others to either settle out of court or to abandon their trademark applications. For example, the Discovery Channel’s “Monster Garage” settled and paid licensing fees to use the trademark. Also, of 87 opposition filings at the PTO, 20 eventually abandoned their claims. These abandonments may have been due to financial reasons. Thus, the most alarming aspect of all of this is Monster Cable’s attempts to construct barriers to competition through the control of the generic term “Monster,” and their actual success at doing so. Monster’s actions could cause other companies with legitimate trademarks to circumvent certain words out of fear of lawsuit. This would then raise search costs, since consumers cannot use certain words to find a certain product. This of course runs counter to the purpose of trademark law, which was meant to foster competition and to lower search costs, not raise them. 

However, there’s a silver lining to all of this, I think. The majority of Monster’s success was not from any court ruling, but from out of court settlements. In addition, in lawsuits and applications that persisted through the process, Monster was often forced to drop the case altogether. For example, in the Monster Mini Golf case, Monster Cable eventually gave up and paid the defendant’s legal fees. Furthermore, any lawsuits that Monster tries to pursue on some of their 70 trademarks (such as their trademark on clothing) will most likely not succeed; they’ve probably lost their rights to it through a lack of use. It seems then that the problem is not in trademark law, but rather a more general problem of litigation costs. 

Thus, my original hope of trademark law as being balanced and fair appears to be intact. While there still remains certain issues in litigation costs and with search engine liability in trademarks, monsters are unable to exploit their  trademarks to prevent fair competition in a court of law.