A federal judge has rejected Monster’s motion to be awarded $6 million in attorney’s fees over its “intensely litigated” dispute with Vital Pharmaceuticals (VPX), parent company to Bang Energy, on grounds that the case was not considered frivolous or unreasonable in accordance with the Lanham Act.
The suit was originally filed by VPX in 2019 after Monster announced the launch of performance energy line Reign Total Body Fuel, with the former alleging trademark and trade dress infringement as well as unfair competition. The trademark claim was dismissed when the judge found VPX’s claim on the mark was invalid, but the trade dress allegation made it to trial last August and the court ruled in favor of Monster. After the ruling, Monster filed a motion to request attorney’s fees claiming the suit was frivolous, which received a responding motion from VPX.
To secure the award, Monster needed to prove in its motion that the case was considered “exceptional” under the Lanham Act, a designation that allows the prevailing party to reclaim a reasonable sum of attorney fees. To do so, it cited aspects of the court’s verdict, claims made by VPX’s CEO during the proceedings and precedent from a host of other failed IP legal disputes brought by VPX where the defendants were awarded compensation, including a 2006 case against supplement maker American Body Builders. Additionally, Monster claimed that the $6 million figure it requested was “a reduced number.”
But Judge Hunt did not agree, stating that some claims heard during the case “were at least colorable” despite VPX’s trade dress infringement theory being “totally debunked” and the “verdict being clear-cut” once the case made it to trial. The judge also said Monster “cherry-picked” statements to support its motion, including points that were made during discovery disputes and taken out of context to the judge’s verdict.
According to the order, while VPX was not able to “meet its burden,” the cases Monster cited were not applicable since in those instances VPX was not able to prove its mark had secondary meaning. This means the marks in question have distinct value within their commercial use, beyond that of the trademark protection.
“A fair reading of the Court’s Order does not suggest that the Court considered [VPX]’s trade dress claim to be unreasonable or frivolous,” said Judge Hunt in the order. “Further, unlike the above-cited cases, where the courts found that the plaintiffs had not provided any secondary meaning evidence, the District Court here found that Plaintiff had [cited] some evidence of secondary meaning—not much, perhaps, but enough to survive summary judgment.”
That is the key point that VPX argued in its response to Monster’s motion – that although it did not win, its claims were substantive enough to make it to trial. VPX argues the event of the trial is evidence that the case cannot be deemed baseless. While the judge may have sided with VPX on that account, the overall tone of the order was contentious and highlighted “objectionable conduct” by VPX and its CEO. Nonetheless, the judge ruled the trial was fair, the case was worthy of being heard and that both sides should bear the burden of their respective attorney fees.
“The language [of the verdict] is not the language of dismissive rejection of a frivolous argument. It is the language of a careful balancing of facts and law leading to a thoughtful decision.”