Monster drinks threaten tiny Vt. brewer
By Gordon Dritschilo
Staff Writer | October 12,2009
Matt Nadeau said he's pretty sure people can tell the difference between a craft beer and an energy drink.
Hansen Beverage, which makes the Monster Energy Drink along with a line of "natural" sodas, seems to think otherwise. A law firm claiming to represent the California company has sent a cease-and-desist order to Nadeau, proprietor of Rock Art Brewery, over his Vermonster beer.
"I'm bewildered right now," Nadeau said Friday.
Nadeau said he wants to keep the name of his beer and has talked to five different trademark lawyers who tell him Hansen doesn't have a case. However, he said he is afraid that Hansen's pockets are much deeper than his and could afford a series of appeals that would bankrupt him.
Meanwhile, the story is circulating on beer blogs and at least one store in Vermont has pulled all of Hansen's products from its shelves in protest.
In addition to Monster, Hansen makes Hansen's Natural Soda along with various juices and teas using the Hansen name.
Rock Art, based in Morrisville, makes about 3,000 to 3,500 barrels of beer a year. Nadeau said that while he does have some out-of-state distribution, almost all of his beer is sold in Vermont. The Vermonster is a barley wine first produced in 2007 in honor of the company's 10th anniversary.
The letter, signed by Diane Reed of Knobb, Martens, Olsen & Bear in Irvine, Calif., claims the name of the beer will "undoubtedly create a likelihood of confusion and/or dilute the distinctive quality of Hansen's MONSTER marks."
Reed said she was too busy to discuss the case Friday and claimed she was in "confidential negotiations" with Rock Art.
At Hansen's headquarters in California, a request to speak with the company's media representative was directed to a woman who only gave her name as "Amala," which she refused to spell. She said there was no media representative at Hansen and that the company had no comment.
She would not even confirm Reed's law firm worked for them.
Nadeau, on the other hand, had plenty to say. He said the lawyers he contacted told him he could easily rack up thousands in court costs which he would not be able to recover.
"It's not a do-or-die for Rock Art," he said. "Yes, I can change the name. It just rubs me the wrong way. I don't remember the Pledge of Allegiance saying 'and justice for those with the deep pockets.'"
Nadeau said he offered to stay away from energy drinks if Hansen would leave his beer alone.
"Their lawyer — she has the nerve to tell me they're not even worried about the energy drink, they now want to enter the beer market," he said. "It's really unnerving to think a giant corporation has the ability to roll into a market where I'm already using the name."
Rock Art has at least one supporter so far. The Beverage Warehouse in Winooski has pulled all Hansen products from its store. Manager George Bergin said Monster was its top-selling energy drink. He also said he has heard other retailers in the state are taking similar action.
"We hope that if we and others aren't buying their product, it would send a message back to them saying they shouldn't be doing this," Bergin said.
Bergin said they posted a notice on the cooler and that employees at the register have been explaining the action to customers looking for Hansen products.
"Everyone seems to have been completely supportive of Rock Art," he said. "I haven't had anyone who hasn't been upset they couldn't get their Monster."
Larry Meier, who teaches trademark law at Vermont Law School, said a trademark does not give a company exclusive use of a name for any product.
"There's three or four registrations for 'Cadillac,' but all four products are so different they can coexist, like Cadillac for cars and Cadillac for dog food," he said.
The legal test, Meier said, is whether the two products are likely to be confused.
"It's not something that's completely black-and-white," he said. "There's a lot of case law over the years on this issue."
The law can apply to related products, he said. For example, someone making a Log Cabin pancake mix could find themselves in trouble with the makers of the syrup as consumers might reasonably assume they were from the same company.
Rock Art isn't the only Vermonster out there. Ben & Jerry's has long used the name for a massive tub of ice cream available at its shops. A spokeswoman for the company said she was not aware of any trademark issues with the name.
"Vermonster" is also the name of a series of truck rallies in Bradford.
Brooklyn Brewing Co. makes a barley wine called "Monster Ale." A representative to the company declined to discuss whether Hansen had challenged its use of the name.
The Joseph Schlitz Brewing Co., now owned by Pabst, makes a malt liquor called Red Bull which predates — at least in the U.S. — the now-popular Austrian energy drink of that name. A Google search did not reveal any trademark dispute between the companies.