[00:00:07] Speaker 01:
Good morning, Your Honors.

[00:00:09] Speaker 01:
My name is Matt Bellinger with Kenobi Martin's Olsen & Baer on behalf of the Pellant Monster Energy Company, and I would like to reserve three minutes for a bottle, please.

[00:00:19] Speaker 01:
May it please the Court.

[00:00:20] Speaker 01:
In this trademark and trade dress infringement case, we are seeking reversal of the District Court's grant of summary judgment, which was based on a finding of no likelihood of confusion.

[00:00:33] Speaker 01:
The District Court committed multiple errors, each requiring reversal.

[00:00:37] Speaker 01:
the district court committed legal error.

[00:00:40] Speaker 01:
It also did not view the evidence in the light most favorable to Monster, including with respect to Monster's unrebutted survey evidence, which showed actual confusion among consumers and which itself necessitates reversal.

[00:00:54] Speaker 01:
I'll start by addressing the first likelihood of confusion factor the district court considered, which is the strength of Monster's marks.

[00:01:03] Speaker 01:
The district court erred in assessing the strength of Monster's asserted marks.

[00:01:08] Speaker 01:
And that error then cascaded through its analysis of other likelihood of confusion factors, including similarity of the marks and relatedness of the party's goods.

[00:01:19] Speaker 01:
The strength of the mark is evaluated based both on its conceptual strength and its commercial strength.

[00:01:26] Speaker 01:
With respect to conceptual strength, the district court found that Monster's marks are arbitrary, at least for energy drinks.

[00:01:34] Speaker 01:
And arbitrary marks are entitled to the highest degree of protection.

[00:01:38] Speaker 00:
With respect to commercial strength, the district court... Do the... Only the four monster products with the Pantone 375C kind of fluorescent green color, are those the only ones that really confuse consumers?

[00:01:55] Speaker 01:
No, all of the Four Monster products are accused of infringement to bear the marks.

[00:02:01] Speaker 01:
With respect to the trade dress claim, Monster defined its trade dress as the word monster in combination with the colors green and black.

[00:02:09] Speaker 00:
Well, I guess the question is that Four Monster sells in many, many different colors.

[00:02:16] Speaker 00:
Their mark has the four-headed monster.

[00:02:19] Speaker 00:
It doesn't have the sort of the claw that Monster Energy does.

[00:02:25] Speaker 00:
What if there's just not a lot of similarity other than the Pantone 375C green with black combination and the word monster?

[00:02:35] Speaker 01:
We believe that our survey evidence in which a four monster towel product, which was identified as their best-selling product, was surveyed.

[00:02:44] Speaker 01:
That survey evidence was under-budded and showed a very high 64% level of association.

[00:02:50] Speaker 02:
It was 60.4.

[00:02:53] Speaker 01:
I think cumulatively it was about 64% once all the unduplicated answers were considered.

[00:03:01] Speaker 01:
But in any event, that was a very high level of confusion.

[00:03:04] Speaker 01:
And Monster's expert opined that that's applicable to Four Monsters.

[00:03:10] Speaker 02:
But that same survey said only 5.8% believe there was a business connection between Monster and the maker of the towel.

[00:03:18] Speaker 01:
Sure.

[00:03:19] Speaker 01:
So the way that these surveys are done, there's a series of questions that are asked.

[00:03:23] Speaker 01:
There's a question about, you know, who do you think makes or puts out this product?

[00:03:27] Speaker 01:
And then there's some follow-up questions that are designed to test other factors that might be relevant to assessing confusion, such as association as to source.

[00:03:39] Speaker 01:
And so at the end, the expert tallies the results from each of those questions, and to the extent a respondent

[00:03:46] Speaker 01:
answered in response to two questions in a way that may show confusion, those responses are then deduplicated so that each survey respondent only counts essentially as one vote.

[00:03:57] Speaker 01:
And so once those responses were deduplicated across the survey, that's how you arrive at the 64% total number of survey participants who are confused.

[00:04:06] Speaker 02:
And it was an 8.7% believed that the maker of the towel also put out energy drinks.

[00:04:14] Speaker 02:
That's again a much lower percent than the 64% you're quoting.

[00:04:19] Speaker 01:
Correct.

[00:04:20] Speaker 01:
But in response to the first question as to who makes or puts out the product, in response to that question, it was a much higher number, above 60%.

[00:04:29] Speaker 01:
And then these respondents were also asked additional questions to, again, test different elements that may be used to show confusion.

[00:04:38] Speaker 01:
And so the end result of the survey, once all the responses were deduplicated, was the 64% confusion level, which applies to... Council Judge Gould, if I could ask you a question, please.

[00:04:52] Speaker 04:
Could you elaborate a little on any similarities and differences in the products that your client

[00:05:03] Speaker 04:
sells as opposed to the products sold by Ford Monster.

[00:05:11] Speaker 01:
Yes, Judge Gould.

[00:05:12] Speaker 01:
So in addition to selling beverages under Monster's marks,

[00:05:17] Speaker 01:
Monster also sells and distributes other products, including towels, bags, clothing, and blankets.

[00:05:24] Speaker 01:
And those are the identical products that Four Monster sells.

[00:05:28] Speaker 01:
So we have an identity of the types of products that each party are offering under their respective marks.

[00:05:34] Speaker 00:
Does it matter that it seems like you give yours away when you sponsor events, like you give the towels away, that they're not actually purchased by a consumer?

[00:05:44] Speaker 00:
No.

[00:05:44] Speaker 00:
Is that relevant?

[00:05:45] Speaker 01:
It is not relevant.

[00:05:46] Speaker 00:
But why not?

[00:05:46] Speaker 00:
Isn't the language consumer and class of purchasers?

[00:05:51] Speaker 00:
Doesn't that all imply that someone has to buy it?

[00:05:55] Speaker 01:
Well, I think that goes to the commercial strength of the marks.

[00:05:58] Speaker 01:
Setting aside the issue of conceptual strength, which the district court essentially ignored in respect to Monster's non-beverage goods, with respect to commercial strength, what matters there is whether there's an association among those products with the particular source.

[00:06:12] Speaker 01:
And so here, the evidence showed that Monster had distributed at least 4.7 million of its non-beverage goods, including towels, blankets, backpacks, clothing.

[00:06:28] Speaker 01:
And so whether a consumer purchased those items or received them from free is really of no moment.

[00:06:34] Speaker 01:
What matters is that Monster's marks are on those items and that they're making their way into the hands of consumers.

[00:06:41] Speaker 01:
And this court has previously found that advertising expenditures may be used to demonstrate commercial strength.

[00:06:47] Speaker 00:
So does that mean you don't have evidence that there is a similar class of purchasers between your blankets and towels and Four Monsters?

[00:06:56] Speaker 01:
No, there is evidence of that.

[00:06:57] Speaker 01:
In fact, Four Monster stated with respect to their

[00:07:02] Speaker 01:
target audience that they essentially have no specific target market, that their target market is the general public, that they sell to anyone who's interested in purchasing a towel, bag, clothing, blankets.

[00:07:14] Speaker 01:
So their consumers necessarily subsume Monster's potential consumers for their... Is there any evidence on the record that Monster sells towels to the public?

[00:07:24] Speaker 01:
Yes, there was ample evidence of that.

[00:07:26] Speaker 01:
There was evidence in the form of testimony

[00:07:29] Speaker 01:
for Monster CEO Mr. Sachs that those products are sold.

[00:07:32] Speaker 01:
We produced detailed business records in the form of inventory transaction reports maintained by Monster that indicate products that were sold

[00:07:42] Speaker 01:
or distributed.

[00:07:43] Speaker 01:
Now granted, those particular reports didn't differentiate between how many were sold or how many were distributed, but it's clear from the reports that all the products were either sold.

[00:07:52] Speaker 00:
So how do we know if any were sold if you used sold or distributed as the verb?

[00:07:57] Speaker 01:
Well, because Mr. Sacks' testimony ties that together, that those products were, at least some of them were sold and some of them were given away free of charge.

[00:08:05] Speaker 01:
In addition, Monster introduced evidence of 34 license agreements for its non-beverage goods, and evidence of millions of dollars in royalties received from those agreements.

[00:08:16] Speaker 01:
So that's further evidence that all of these non-beverage goods have, in fact, been sold.

[00:08:22] Speaker 04:
So, counsel, Judge Gold was another question.

[00:08:27] Speaker 04:
There's an eight factor test for trademark confusion that I think our circuit has applied.

[00:08:38] Speaker 04:
I want to know which of those eight factors you think raise factual issues.

[00:08:47] Speaker 01:
Yeah, so I think the first and most important factor here is the actual confusion factor.

[00:08:53] Speaker 01:
Actual confusion may be established by survey evidence.

[00:08:57] Speaker 01:
And so here we have unrebutted survey evidence of a very high level of actual confusion.

[00:09:03] Speaker 01:
Foremonster actually sought to exclude that survey on summary judgment.

[00:09:07] Speaker 01:
The district court denied that request and said it was going to consider it.

[00:09:11] Speaker 01:
So having made that determination, the district court was required to view that survey evidence in the light most favorable to Monster, but in fact,

[00:09:21] Speaker 01:
It effectively did the opposite.

[00:09:22] Speaker 01:
It discounted essentially any result in the survey that identified Monster as referring to appellant.

[00:09:30] Speaker 01:
But there was ample evidence in the record from which a reasonable jury could find that those survey responses did, in fact, refer to us.

[00:09:39] Speaker 01:
And so I would also direct the court to its decision in Thane v. Trek bicycle, in which it relied upon

[00:09:47] Speaker 01:
survey evidence alone at a much lower rate of about 28% to reverse a grant of summary judgment.

[00:09:54] Speaker 01:
So I think this case fits squarely within the confluence of that case.

[00:09:59] Speaker 02:
Well, I mean, is Monster trying to acquire a monopoly on anybody who tries to use the word monster to trademark textile goods?

[00:10:08] Speaker 01:
No, no.

[00:10:09] Speaker 01:
You have to, in assessing confusion, it's not just a test of the mark alone.

[00:10:13] Speaker 01:
You have to see how the mark

[00:10:15] Speaker 01:
is actually being used in the marketplace and on which specific goods.

[00:10:19] Speaker 01:
So this would have to be done on a case-by-case basis.

[00:10:24] Speaker 01:
But here, given Foremonster's use of its mark and the types of goods that it's using its marks on and the confusion evidence, at a minimum, issues a fact that this needs to go to a jury to be decided.

[00:10:39] Speaker 00:
Let's say you put your black with whatever, the Pantone 375 green on a car.

[00:10:48] Speaker 00:
Do you now?

[00:10:49] Speaker 00:
I mean, I guess I'm just unclear on how far does this right go.

[00:10:54] Speaker 00:
I mean, you're clearly outside of energy drinks.

[00:10:57] Speaker 00:
So does this go to cars, buses?

[00:11:00] Speaker 00:
How far are you extending?

[00:11:02] Speaker 01:
Well, it goes to, I'm sorry, are you finished?

[00:11:05] Speaker 01:
It goes to the relatedness of goods.

[00:11:07] Speaker 01:
So that, again, is a question in the minds of consumers as to what's deemed related.

[00:11:12] Speaker 01:
But I don't think the court has to answer that specific question, because here the fact is the fore monster is using its mark on identical goods, but monster is using its mark on.

[00:11:24] Speaker 01:
Marks on.

[00:11:24] Speaker 01:
And monster also has trademark.

[00:11:25] Speaker 00:
Okay, tell me, let's say fore monster and monster energy both have cars.

[00:11:31] Speaker 00:
that have that are in the black color and have the Pantone green.

[00:11:35] Speaker 00:
They have their separate marks one with the forehead and monster years with the claw.

[00:11:40] Speaker 00:
Are you saying then that you would also have a right for protection in that context of a car?

[00:11:49] Speaker 01:
Well, again, I think that would turn on whether consumers, there's an association and protectable rights in, for example, Monster's Marks for those goods.

[00:11:59] Speaker 01:
And to be clear here, the district court, it was undisputed, Monster had protectable trademark rights for these goods.

[00:12:05] Speaker 01:
The district court acknowledged that up front.

[00:12:07] Speaker 01:
It wasn't even part of the district court's opinion.

[00:12:09] Speaker 01:
The only thing the district court addressed was the likelihood of confusion.

[00:12:14] Speaker 00:
But how are we going from energy drinks to cars?

[00:12:19] Speaker 01:
Well, if Monster started producing cars or licensing its mark for use on cars and entered that industry and over time built up an association.

[00:12:30] Speaker 01:
then it, you know, conceivably could claim rights in that.

[00:12:34] Speaker 01:
But again, I think that's not an issue.

[00:12:37] Speaker 00:
No, look at, you have all these promotional events, right?

[00:12:39] Speaker 00:
You have a promotional event and you say, okay, I want to put this on a car.

[00:12:43] Speaker 00:
And I guess you had one, the photo of Tiger Woods at some PGA tournament that say you want now whichever golf star to be driving up to that tournament in a

[00:12:53] Speaker 00:
than a black car with the Monster trademark on it.

[00:12:58] Speaker 00:
As a promotion, not being sold.

[00:13:00] Speaker 00:
Then you would be asking for that protection to extend to cars.

[00:13:04] Speaker 01:
Sure, like Monster sponsors or has briefly sponsored NASCAR race cars.

[00:13:08] Speaker 01:
It sponsors Formula One teams.

[00:13:11] Speaker 01:
But in those contexts, the consumer viewing a brand on those cars understands that there's lots of different brands that advertise on those cars.

[00:13:19] Speaker 01:
And consumers understand that that is

[00:13:22] Speaker 01:
advertising use, but the source of the underlying car might be Ferrari or Mercedes.

[00:13:27] Speaker 01:
So that's a different use than what we have here, where you have the parties using their marks on identical goods and for which Monster has registrations.

[00:13:35] Speaker 01:
And I'm well into my rebuttal time, but I'd be happy to answer any additional questions.

[00:13:40] Speaker 00:
Thank you.

[00:13:40] Speaker 00:
You have a minute and 27, 28 seconds left.

[00:13:52] Speaker 03:
Morning, Your Honor.

[00:13:54] Speaker 03:
Good morning.

[00:13:54] Speaker 03:
I want to go for Changsu Shikogai Industrial Co-Limited and Changsu Hege Microfiber Textile Co-Limited.

[00:14:07] Speaker 03:
I'm shocked that opposing counsel has led with this survey.

[00:14:14] Speaker 03:
As discussed in our brief and, you know, citing recent Supreme Court precedent,

[00:14:24] Speaker 03:
Surveys can be abused in the trademark context quite regularly.

[00:14:30] Speaker 03:
And in fact, what this survey did is showed participants a picture of our product with a four monster.

[00:14:41] Speaker 03:
And then they asked, what's the source of this product?

[00:14:47] Speaker 03:
A lot of the survey respondents answered monster.

[00:14:52] Speaker 03:
And then in the underlying data, this isn't included in the expert report, but it is in the excerpts of record.

[00:14:59] Speaker 03:
If you look at the data, there's another question.

[00:15:01] Speaker 03:
Why did you say monster?

[00:15:03] Speaker 03:
And I know at least the first 20 of those responses to monster

[00:15:10] Speaker 03:
say because that's what it says on the town.

[00:15:13] Speaker 00:
But isn't this error for the district court to be making these determinations?

[00:15:18] Speaker 00:
That's for a jury, right?

[00:15:21] Speaker 00:
You're making jury arguments as to why this survey is not persuasive.

[00:15:29] Speaker 00:
And you prevailed on the district court.

[00:15:30] Speaker 00:
The district court says the court makes clear that it is not weighing the evidence here.

[00:15:35] Speaker 00:
Rather, the court is simply concluding that the evidence is unhelpful to the likelihood of confusion analysis because Monster Energy's expert included the term monster in his survey results, but that's actually weighing the evidence.

[00:15:48] Speaker 00:
And I don't think that's proper.

[00:15:50] Speaker 00:
On summary judgment, we're not supposed to do that.

[00:15:52] Speaker 00:
And if anything, if you're supposed to make inferences, it's in favor of the non-moving party.

[00:15:57] Speaker 00:
So are you inviting us to affirm error here on the part of the district court?

[00:16:03] Speaker 03:
I think there's an erroneous assumption in the question.

[00:16:07] Speaker 03:
The first step in analyzing trademark infringement is to compare the accused mark against the registered mark.

[00:16:17] Speaker 03:
There is no registered mark for monster in this case.

[00:16:20] Speaker 03:
So a survey that counts as instances of confusion, responses that monster is the source of a product, is just not germane to the case.

[00:16:30] Speaker 03:
It's not a jury question.

[00:16:32] Speaker 03:
It's just completely irrelevant to the marks that issue in the case.

[00:16:36] Speaker 03:
There are 25 marks in the case, 17 of them, some of which are word marks, are to monster energy.

[00:16:43] Speaker 03:
There's one California mark to monster.

[00:16:45] Speaker 03:
But all the registered marks that we're comparing Four Monsters Mark II are logo marks with the distinctive lettering, symbol design, the thigh.

[00:16:58] Speaker 00:
The black towels.

[00:16:59] Speaker 00:
Okay, let me just ask.

[00:17:00] Speaker 00:
Do you concede that Four Monsters Pantone 375C Green is the same as Monster Energy's trade dress?

[00:17:10] Speaker 03:
I don't think Monster has defined trade dress other than in the broadest and legally unavailing sense of the colors green and black appearing on a can.

[00:17:23] Speaker 03:
Or I don't even think they limit it to can.

[00:17:25] Speaker 03:
They say the color is green and black.

[00:17:27] Speaker 00:
All right.

[00:17:27] Speaker 00:
I'll just say when I looked at your blanket, the black with the Pantone 375C green, I thought it was Monster Energies.

[00:17:35] Speaker 00:
Trade dress so you want to address that?

[00:17:38] Speaker 00:
I mean specifically chose the black with that very very specific fluorescent green and a monster name Your honor tell me why that doesn't go to likelihood of confusion The the towels come in at least 12 different colors and there's talk about the Pantone 375 C green towel mm-hmm

[00:18:04] Speaker 03:
Well, that is one group.

[00:18:06] Speaker 00:
Your client chose that particular green, right?

[00:18:10] Speaker 00:
Didn't choose forest green, didn't choose sea green, chose Pantone 375 sea green.

[00:18:19] Speaker 03:
I think this may have been discussed in the briefing below.

[00:18:24] Speaker 03:
I know it came up in a deposition where the specific color was suggested by a marketing person

[00:18:33] Speaker 03:
In China, our clients who are in China had never seen or at least never acknowledged they did take one trip to the United States.

[00:18:40] Speaker 00:
At least that's their claim.

[00:18:41] Speaker 00:
They said they did a road trip throughout the United States, going to all these convenience stores, and they say they never saw it, right?

[00:18:48] Speaker 03:
Yes.

[00:18:48] Speaker 03:
And they do not speak great English.

[00:18:49] Speaker 03:
If I traveled through China, I doubt I could remember.

[00:18:52] Speaker 00:
You could see a can, right?

[00:18:53] Speaker 00:
You could see the colors on a can.

[00:18:55] Speaker 00:
That doesn't require knowledge of English, does it?

[00:18:57] Speaker 03:
Yes, but there would probably be a display of Coor with 50 different types of cans.

[00:19:00] Speaker 00:
But this is summary judgment.

[00:19:03] Speaker 00:
It's just a question of genuine factual dispute, right?

[00:19:07] Speaker 00:
I'm not saying who's going to ultimately prevail if this goes to trial.

[00:19:10] Speaker 00:
This is just, is there a genuine material factual dispute?

[00:19:12] Speaker 03:
There's no evidence in the record or anywhere that Four Monster had ever seen the color combination and that specific

[00:19:24] Speaker 02:
Well, there's no evidence of intentional appropriation of Monster Energy's mark.

[00:19:31] Speaker 02:
The question is, though, is there likelihood of consumer confusion?

[00:19:34] Speaker 02:
That's the issue.

[00:19:36] Speaker 03:
And there's not one case, despite the billions of cans of Monster Energy sold and the million towels that 4Monster has sold, there's not one example in the 20,000 reviews listed on Amazon where someone says, hey, I thought this was going to be a Monster Energy towel.

[00:19:53] Speaker 03:
But instead, it's a four monster towel.

[00:19:55] Speaker 03:
In the 20,000 reviews, no one says that.

[00:20:00] Speaker 02:
Of course, the fact is that this is sort of a low-cost item.

[00:20:04] Speaker 02:
I mean, people aren't buying Mercedes-Benz.

[00:20:06] Speaker 02:
They're buying, what, a $10 or $20 towel.

[00:20:10] Speaker 02:
And the law seems to be that where there's a relatively cheap product, consumers aren't particularly astute or worrying about what the source is.

[00:20:21] Speaker 03:
And that somewhat goes to another issue, although in some ways conceptually less significant with the survey is that when 99% at least of four monster sales are through its amazon.com store page, when people see this item, it's your standard Amazon store page.

[00:20:43] Speaker 03:
Where you know that's the context in which the purchase are made not seeing a physical good or or a case in a convenience store You know what they see is a thousand words of text describing the product the customer reviews everything else That's the context in which purchases are made and even though if it's a it's a low-cost product You need to put it in your you need to look at it See how many stars it's ready to put it in your Amazon shopping cart, and then you know do your Amazon checkout

[00:21:15] Speaker 03:
But I think the fact that the survey presented such an artificial thing where people will generally not be exposed to this case until after these goods arrive at their home and say, oh, it's a four monster case.

[00:21:29] Speaker 03:
It's not something that would induce the purchase of the product.

[00:21:36] Speaker 00:
And, Your Honor, in terms of... Let's even talk about the survey, right?

[00:21:41] Speaker 00:
The survey said that the net fame measure for Monster Energy is 86.2%, right?

[00:21:48] Speaker 00:
So then why wouldn't it be at least an inference that should go to a jury, that if somebody says, I think this belongs to Monster, that they're probably thinking about Monster Energy?

[00:22:01] Speaker 03:
Why isn't that at least a jury question?

[00:22:05] Speaker 03:
Is this a different, are we onto the Isaacson survey?

[00:22:08] Speaker 00:
Okay, I am looking at Dr. Isaacson's declaration and I'm looking at ER 102.

[00:22:15] Speaker 00:
He says in paragraph 13, the survey database included 398 interviews.

[00:22:20] Speaker 00:
Among all respondents, 87.7% answered that they had heard of Monster Energy before.

[00:22:27] Speaker 00:
After adjusting for the control, the net fame measure for Monster Energy is 86.2%.

[00:22:33] Speaker 00:
So clearly brand recognition for Monster Energy is high.

[00:22:39] Speaker 00:
So if they were asked, do you think this belongs to Monster Energy drinks, Monster Energy drinks, drinks, why is that

[00:22:50] Speaker 00:
not at least a jury question about.

[00:22:53] Speaker 03:
Your Honor, the Isaacson survey, our concern and the concerns that I've expressed are about the Hollander survey.

[00:22:59] Speaker 00:
I understand.

[00:23:00] Speaker 00:
I'm understanding.

[00:23:01] Speaker 00:
The Isaacson survey.

[00:23:01] Speaker 00:
But what I'm saying is the Isaacson survey, in addition to the Hollander survey, I think, at least presents an issue for the jury.

[00:23:10] Speaker 00:
You're saying the Hollander survey, and the district court agreed with you, is problematic because they just said monster in the question.

[00:23:19] Speaker 00:
as to confusion.

[00:23:20] Speaker 00:
And what I'm saying is, if you combine that with the Isaacson survey, which says, wow, this Monster Energy brand has over 86% brand recognition.

[00:23:31] Speaker 03:
Why is it that at least a jury question was only with reference to energy drinks and was done among energy drink?

[00:23:38] Speaker 03:
Consumers these they've sold a hundred and forty billion cans of energy drinks I expect people to be able to recognize you know with the slightest indication that That's you know an energy drink is related to monster if it has that shade of green at all and

[00:23:56] Speaker 03:
There, I think they have very strong protection and wide recognition and ten billion dollars in advertising.

[00:24:02] Speaker 03:
But that is, you know, they're using that to try to bootstrap an argument that there's infringement of these specific marks that contain the symbols and the stylized designs.

[00:24:17] Speaker 03:
They're taking their broad energy drink marks and their fame in the energy drink mark and trying to

[00:24:23] Speaker 03:
squash people in completely unrelated fields and You know again the first step rather than just accepting when council uses the term monster to refer to the marks Trademark infringement and analysis is a specific analysis of the registered trademark in comparison with the accused good in fact if

[00:24:47] Speaker 03:
If the court wanted to undertake this exercise, there should be 27 different sleek graph factor analyses with respect to each mark and each product category for the marks, and not just kind of an engross, which is not what trademark law is about, analysis of, hey, there's this thing, Monster Energy.

[00:25:07] Speaker 04:
Counsel.

[00:25:08] Speaker 04:
Yes.

[00:25:08] Speaker 04:
Judge Gould, if I could interject a couple of questions.

[00:25:14] Speaker 04:
I'm looking at this from a big picture angle.

[00:25:22] Speaker 04:
I'm wondering how many of the eight factors in our test for trademark infringement involve factual issues, either extensively or in part.

[00:25:43] Speaker 03:
There's certainly plenty of Ninth Circuit.

[00:25:45] Speaker 03:
There's all eight sleep craft factors.

[00:25:47] Speaker 03:
They're weighed differently in the context of different cases.

[00:25:50] Speaker 03:
There's a tri-oca that's most important, but there's plenty of case law saying if the marks are completely different, then that's the end of the analysis.

[00:26:00] Speaker 00:
But our case law also says that similarity is supposed to be weighed more than any differences.

[00:26:08] Speaker 00:
I mean, obviously, you have to look at the mark in its entirety.

[00:26:12] Speaker 00:
but we've said that you don't way similarity and differences the same you a similarity is heavier.

[00:26:18] Speaker 00:
You agree with that right.

[00:26:20] Speaker 00:
That's what our losses.

[00:26:22] Speaker 03:
Not know I would not agree with that to the extent that evaluating the similarity requires dissection of a registered mark into

[00:26:30] Speaker 03:
its component parts, such as if it's a three-word mark, taking one of those words.

[00:26:36] Speaker 00:
Let me just quote then.

[00:26:38] Speaker 00:
Similarities are weighed more heavily than differences.

[00:26:42] Speaker 00:
That's iron mark.

[00:26:43] Speaker 00:
Are you disputing that or not?

[00:26:46] Speaker 03:
I would have to re-review the context of that, but I believe that would come in the context of a fuller discussion of the nature of the marks at issue in that case.

[00:26:57] Speaker 03:
Any two things in the universe are similar under some standard.

[00:27:03] Speaker 03:
But the fact that there can be a similarity, the ultimate issue in trademark law in every case is likely to have confusion.

[00:27:10] Speaker 03:
That's why they're pushing so hard on the Hollander

[00:27:14] Speaker 03:
because that's their only evidence of confusion, but it's fundamentally flawed.

[00:27:19] Speaker 03:
It doesn't pass, you know, the standards of like a first year survey.

[00:27:26] Speaker 04:
Okay, Council, I have a couple of questions for you.

[00:27:30] Speaker 04:
If the question of actual confusion is factual in part or in whole, the question of how much confusion there is,

[00:27:44] Speaker 04:
Why isn't that the type of question that should go to a jury?

[00:27:52] Speaker 03:
There's a lot of discussion and back and forth and development in the Ninth Circuit case law over 30 years about to what extent is the likelihood of confusion analysis

[00:28:06] Speaker 03:
factual, because if you find it's fully factual, then you don't get summary judgment granted in the worst sorts of trademark cases, and there are many trademark cases in which non-infringement

[00:28:17] Speaker 03:
is granted.

[00:28:18] Speaker 03:
So, you know, often the analysis, the common sense analysis, kind of mixed in with what kind of evidence.

[00:28:27] Speaker 03:
Here, the only evidence they have in infringement is fatally flawed, and that's suggestive of the weakness of their case in general.

[00:28:36] Speaker 04:
Counsel, I have a related question to my first question.

[00:28:41] Speaker 04:
Love.

[00:28:41] Speaker 04:
Is there any law in the federal courts, either in our circuit or in any other circuit, or in some published district court opinion that says the questions relating to the trademark are quintessentially factual?

[00:29:08] Speaker 03:
I think there is language in various decisions.

[00:29:11] Speaker 03:
The Federal Circuit, which handles appeals from the PTO and trademark registration and opposition proceedings, there's more trademark law from the Federal Circuit than the Ninth Circuit.

[00:29:22] Speaker 03:
So in the hundreds of cases, there are probably some things that set up.

[00:29:26] Speaker 03:
But it does take kind of a nuanced understanding.

[00:29:30] Speaker 04:
Is the position that you want us to adopt in accord with the Federal Circuit's president, or is it different?

[00:29:42] Speaker 03:
I think it would be consistent.

[00:29:44] Speaker 03:
The position I want the court to adopt is that there's a fatally low bar where

[00:29:49] Speaker 03:
you know, reason and common sense and application of evidence in the record, and the district court goes over the record extensively in its 34-page opinion and analysis, you can reach a low enough threshold where there's no credible, no reasonable jury.

[00:30:08] Speaker 03:
I mean, the notion of reasonableness

[00:30:11] Speaker 03:
is suffused throughout trademark law like other areas of law.

[00:30:15] Speaker 03:
And there's a minimum standard of reasonableness that has to be met to survive summary judgment.

[00:30:21] Speaker 00:
Question the district court required sales of the sweatshirts and the towels and everything else But didn't cite any case that require sales and the parties haven't cited any cases that require sales Is it your position that sales are required or is you know distribution for free as part of some you know sponsorship of some event enough?

[00:30:42] Speaker 03:
I would say consumers are sophisticated with respect to trademarks and they understand whether it's goods from Coca-Cola or, you know, Jose Cuervo or beer.

[00:30:52] Speaker 03:
There are often promotional items associated particularly with alcohol and Monster is a popular mixed drinks and other thing.

[00:30:58] Speaker 03:
And consumers recognize this.

[00:31:00] Speaker 03:
They're not going to accidentally receive a bar towel for Monster Energy that says boldly Monster Energy or,

[00:31:11] Speaker 00:
They would never receive a cartel from port monster because her monster so is that you agree that sales are not required What's the answer to the question really?

[00:31:22] Speaker 03:
I?

[00:31:23] Speaker 03:
Think I've seen discussion in another circuit on that Topic regarding promotional items, but when I say I think I've seen I mean like a year ago I don't remember sites or what's the answer to my question.

[00:31:34] Speaker 03:
I mean, I'm just I don't think as a matter of law sales are required, but I'm not aware of any

[00:31:41] Speaker 00:
All right, let me see if my colleagues have any more questions.

[00:31:46] Speaker 00:
Judge Gould, any more questions?

[00:31:47] Speaker 00:
All right, thank you.

[00:31:48] Speaker 00:
I guess you have a minute, 28 for rebuttal.

[00:31:54] Speaker 01:
All right, thank you, Your Honors.

[00:31:55] Speaker 01:
I'd like to just briefly touch on a few points.

[00:31:58] Speaker 01:
First, just returning to the confusion survey evidence.

[00:32:02] Speaker 01:
opposing counsel raise some various arguments about that.

[00:32:05] Speaker 01:
But again, all of that summary judgment goes to the weight of the evidence.

[00:32:09] Speaker 01:
And here, there is at minimum a jury issue as to

[00:32:12] Speaker 01:
the 64% confusion number and which of those responses were referring to Monster specifically.

[00:32:20] Speaker 01:
And also point out, there was also reference that the survey was merely a reading test, but any survey respondents who identified for Monster, which was the mark shown on the towel, were not counted as confused.

[00:32:31] Speaker 01:
So I just wanted to make clear about that.

[00:32:34] Speaker 01:
And with respect to the other fame survey,

[00:32:39] Speaker 01:
I just wanted to also clarify that that survey was a survey of the general public.

[00:32:43] Speaker 01:
It showed the Monster Energy word mark in black and white, not in any stylized font.

[00:32:48] Speaker 01:
It was not depicted on a can of Monster's drinks.

[00:32:52] Speaker 01:
And the results of that survey, the 86% Dr. Isaacson opined, demonstrated that the Monster Energy mark, at least, is famous among the general public, which both supports the strong commercial strength of the mark

[00:33:06] Speaker 01:
and also provides evidence that survey respondents who identified Monster were in fact referring to Monster Energy Company.

[00:33:14] Speaker 01:
And so if there's no further questions, I'm out of time and we would request reversal.

[00:33:18] Speaker 04:
Council, I wonder if you have...

[00:33:23] Speaker 04:
an answer or a position on the question I asked your friend on the other side of the case.

[00:33:32] Speaker 04:
That is the question of to what extent president in the federal courts indicates that trademark infringement raises factual issues.

[00:33:48] Speaker 01:
Yes, I believe this court has held that the issue of likelihood of confusion, which is what the district court based its opinion on, is a factual determination.

[00:33:56] Speaker 01:
And so I would point you to the Thane case that we cited in our briefing, 305 F3rd at page 901 for the statement that likelihood of confusion is a factual question.

[00:34:07] Speaker 01:
Thank you.

[00:34:09] Speaker 00:
All right, no further questions.

[00:34:11] Speaker 00:
We're adjourned for the day.

[00:34:12] Speaker 00:
Thank you to all counsel for your very helpful arguments.