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Monster Cable Finds Itself On The Other Side Of A Trademark Case (But Still Losing)

from the monster-trademarks dept

As you’re probably aware, Monster Cable is somewhat famous as a trademark bully — at times going after completely unrelated businesses that use the word “monster” (such as a mini-golf course, an automotive parts shop and the manufacturer of deer salt blocks) despite there being no chance for confusion. So it’s interesting to see what happens when it’s actually being accused of trademark infringement itself. Unlike Monster’s lawsuits, this one is from a company that’s actually in the same space. Dolby is suing Monster for trademark infringement and last week Monster failed in its attempt to win the case via summary judgment, while Dolby partially won its summary judgment arguments. (Updated to show the logos):

Incredibly, Monster, which continually attacks totally unrelated businesses where no moron in a hurry would ever consider there to be any confusion, is now forced to argue here that its own use wouldn’t cause any confusion at all. However, the court isn’t convinced, noting that the marks do, in fact, appear similar (and even Monster’s own “expert” witness said as much):

Here, both marks consist of an icon of a pair of over-the-ear headphones surrounding an abstract geometrical shape. The proportionate size of the headphone icon compared to the center geometric shape is approximately the same for both marks. Both of the center geometric shapes have a similar dark, right-angle side nearest the headphones icon, with mirror-image, inward-facing, semi-circular arcs opposite the right-angle side. Indeed, Monster’s own witnesses concede that the marks have similar elements. The evidence indicates that Monster’s mark sometimes appears in a certain configuration with the Monster name or in certain color combinations, but sometimes does not. In short, a reasonable jury could find, on the record before the Court, that this element favors likelihood of confusion.

And, while Dolby itself doesn’t directly compete, it licenses its mark to those who do:

Headphones bearing the Dolby mark sell in the same price range and to the same market segments. Moreover, the Dolby mark may appear on a variety of different headphone styles, including styles similar to Monster’s, since Dolby licenses its mark to different headphone manufacturers. This adds to the potential for source confusion, whatever the sophistication level of the buyers.

Oh, and there’s even some evidence to suggest that, unlike those Monster accuses of trademark infringement, Monster itself may have purposely copied Dolby’s mark:

Based upon the record before the Court here, a reasonable jury could find that Monster intentionally adopted a mark similar to the Dolby Headphone Mark, thus creating a triable issue. Monster was aware of the Dolby Headphone Mark at the time that it adopted its Monster Headphone Mark. It had, in fact, licensed and used the Dolby Headphone Mark on its own products. The record contains conflicting accounts about the creation of the Monster Headphone Mark. Dolby also offers evidence that Monster previously admitted using a different Dolby mark without permission, as well as evidence that Monster acknowledged the value of including the Dolby Headphone Mark and Dolby technology in marketing headphones to consumers. This and other circumstantial evidence would allow a reasonable jury to find in favor of Dolby on the intent to confuse factor

You would think that, for a company so incredibly (and ridiculously) aggressive in enforcing its own trademark, it would be a bit more careful in designing its own damn logos. Monster may eventually win the case, but initially it doesn’t look to be going that well.

Filed Under: headphones, trademark, trademark bullies
Companies: dolby, monster cable

.Rip .Off: Highlights From The Top-Level Domain Scrum

from the .goo-me dept

The whole ICANN process for creating generic top level domains (gTLDs) has clearly been designed to allow certain groups to make a ton of money by basically pressuring individuals and companies to snap up more domains they don’t need. The whole thing has appeared impossibly corrupt from the very beginning. However, with ICANN finally releasing the full list of gTLDs that have been applied for (using the obnoxious title “reveal day” — as if the world was really waiting impatiently for this crap), there are at least some bizarre or interesting factoids as we skim through the list. Here are a few:

There’s plenty more to dig into, but those were the ones that caught my eye. It seems like the key story is just how often Amazon and Google come up against each other…

Filed Under: cash grab, gtld
Companies: amazon, american express, chrysler, google, icann, johnson and johnson, microsoft, monster cable, ralph lauren, starbucks

Monster Cable Claims EBay, Craigslist, Costco & Sears Are 'Rogue Sites'

from the total-failure dept

When we talk about how dangerous PROTECT IP is as a censorship bill, we’re often told that we shouldn’t worry so much, because it’s only targeted at “rogue sites” and thus wouldn’t impact any legitimate sites. We’re told there’s nothing about rogue sites that is worth defending. And yet, as we’ve seen with the list of “pirate” sites that GroupM put together with help from the music and movie industries, their definition of a “pirate” site is expansive in the extreme. It included the Internet Archive, Vimeo, Soundcloud and a ton of blogs and news sites, including the famed Vibe magazine.

And don’t think it gets any different when you hop over to the trademark/counterfeit side of the debate. In Tim’s post about Monster Cable lobbying in favor of PROTECT IP, as an aside at the end, he notes that on Monster Cable’s own list of “rogue sites,” eBay and Craigslist top the list. And it doesn’t stop there. Retailing giant Costco is on the list. As is Sears. Also some Backpages sites are listed as well (Backpages is a Craigslist-like classifieds system). There’s also FatWallet, which is one of the most popular “deal” listings sites out there. There’s also PriceGrabber and ComputerShopper — popular legitimate sites for comparison shopping and computer purchases. These are not “rogue sites.” These are legitimate companies that Monster Cable appears to have a vendetta against, because they allow for or promote the resale of perfectly legitimate secondhand goods.

In other words, for all the misleading whining from Monster about how it needs PROTECT IP to stop “rogue sites,” you can see from Monster’s own definition of what it considers a rogue site, that it would like to use such things to stomp out legitimate secondhand sales. Now, you can argue over whether or not these sites would pass following a judge’s scrutiny under PROTECT IP, but we’ve seen judges rubber stamp similarly questionable claims against blogs in the past as being “rogue sites.”

If you look at both the GroupM and the Monster lists, one thing becomes clear: these companies are defining any site they can’t control as being a “rogue site.” This isn’t about stopping “piracy.” It’s about using the law to stomp out channels that they can’t control. This is a key point that becomes obvious if you spend any time looking at the details of this law. It’s not about protecting “IP.” It’s about protecting old business models that were based on absolute control of the channel. The complaints of the Universal Musics and Monster Cables of the world isn’t really about counterfeits and piracy, but about the fact that they no longer have absolute control.

And they’re just using “piracy” as the wool to pull over Congress’ eyes to pass a law that tries to give them back control over the channel… by declaring tons of perfectly legitimate sites “rogue sites.”

Filed Under: competition, control, protect ip, rogue sites
Companies: costco, craigslist, ebay, monster cable, sears

Monster Cable Blames 'Rogue Sites' Rather Than Its Own Business Practices For 'Stealing Good Will'

from the apparently,-trademark-lawsuits-and-$1800-cables-aren't-profitable-enough-any dept

The Copyright Alliance blog has a new post up patting itself on the back for its tireless efforts in pushing PROTECT IP through the legislative system. CA writer Sandra Aistars has joined the deceptively-named U.S. Chamber of Commerce in a series of “educational meetings and briefings to urge support for legislation targeting these so-called rogue sites.”In addition to the expected “contribution” from the AFL-CIO (“online infringement costs jobs, steals wages, and cuts benefits, blahblahblah”), a name well-known to Techdirt has reared its astronomically-priced head to decry the global impact of pirated goods: Monster Cable.

Illustrating the diversity of jobs impacted by online counterfeiting and piracy, David Tognotti, General Counsel of Monster Cable, shared his company’s story. Monster Cable, founded by a first-generation American in his garage, now owns 400 patents and employs 500 people. But during the last several years, the company has lost “hundreds of millions of dollars” to counterfeits.

“Our brand is respected by consumers worldwide,” he said. But “rogue web sites are stealing the good will we’ve built, and siphoning off sales.”

The implications of counterfeit versions of those created by a company like Monster Cable goes beyond lost jobs and revenues. Counterfeit electronics are made in substandard factory conditions, and can contain unlawful and harmful amounts of substances like lead and chromium, he explained. Consumers have also complained of stolen credit card information, he said.

I’m really not sure what sort of “good will” these rogue web sites are “stealing” from Monster. Could it be all the “good will” it built up by suing anybody who dared to use the word “monster” in their own ventures, including entirely unrelated businesses such as a mini-golf course, an automotive parts shop and (although it dropped this case before it went too far) the manufacturer of deer salt blocks?

Perhaps Tognotti is referring to the “good will” built up by Monster’s overpriced cables that are pushed via deceptive point-of-sale displays and contain incredibly high profit margins. While there isn’t anything wrong with separating fools from their money, your product should at least be able to outperform a wire coat hanger.

If anything’s hurting Monster Cable these days, it’s the self-inflicted beatings handed out by its pricing structures, questionable sales tactics and general disregard for its public image. With the ready availability of inexpensive cables that perform just as well as Monster’s, it’s highly doubtful that pirated goods are the driving force behind any “loss of sales” that Monster claims.

(Another small note: if you have a whole lot of spare time, check out Monster’s extensive list of “blacklisted sites” on its corporate web site. Topping the list are ebay and Craigslist. Apparently, Monster would rather you didn’t purchase second-hand cables, either.)

Filed Under: good will, lobbying, politics, protect ip
Companies: monster cable

The Companies Who Support Censoring The Internet

from the censorship-is-good-for-business dept

A group of companies sent a letter to to Attorney General Eric Holder and ICE boss John Morton today (with cc’s to VP Joe Biden, Homeland Security boss Janet Napolitano, IP Czar Victoria Espinel, Rep. Lamar Smith, Rep. John Conyers, Senator Patrick Leahy and Senator Charles Grassley), supporting the continued seizure of domain names they don’t like, as well as the new COICA censorship bill, despite the serious Constitutional questions raised about how such seizures violate due process and free speech principles. While many reporting on this letter refused to actually post a copy of the full letter, kudos to Greg Sandoval over at News.com for doing so (full text also included after the jump on this post).

The companies try to present a united front that censoring the internet is a good thing. It includes the usual suspects of Viacom and NBC Universal on the content side and Louis Vuitton and Tiffany on the counterfeiting side, but there are a few other interesting names: such as Monster Cable (never met an IP law it didn’t want to abuse, apparently), the NBA, MLB and NFL (sports leagues unite in censorship!) as well as Voltage Pictures, famous for suing thousands of fans for downloading Hurt Locker. Activison, which has become increasingly aggressive on IP issues lately is on the list as well, of course. Anyway, here’s the full list of companies that support censoring the internet, because they’re too lazy to compete in the marketplace or innovate when that market changes:

These companies are clearly trying to protect their own business interests, but it seems reasonable to let them know that you don’t appreciate them seeking to censor the internet. If you haven’t been following this story, and want to understand the details, we’ve discussed why COICA is all about censoring websites without due process and in violation of the First Amendment. We’ve also discussed how the ongoing (pre-COICA) domain name seizures were riddled with serious errors that appear to violate the law as well, including seizing the domains of blogs regularly used and recognized within the music industry based on evidence involving songs sent by the record labels themselves.

And, of course, none of this is to say that violating copyright or trademark laws should be allowed. But we have a system to deal with such things: you file a lawsuit, you have an adversarial hearing in a courtroom (i.e., due process) and you let both sides present their case. COICA and these domain seizures look to avoid all of that. And that’s a big, big problem. That these companies would support such censorship and leapfrogging over due process suggests that they’re companies not worth doing business with.

Filed Under: censorship, due process
Companies: activision, louis vuitton, monster cable, nbc universal, nike, tiffany, viacom

Monster Cable Issues Yet Another Bogus DMCA Notice To A Search Engine

Back in November, we had the ridiculous story of Monster Cable almost certainly abusing the DMCA to takedown a classifieds search engine called Jaxed. It appears that the company has done something similar yet again. The folks at Dealbert.net, a “deals” search engine that searches various deals websites (FatWallet, SlickDeals, etc.), faced a takedown when Monster Cable’s chief lawyer issued a DMCA takedown notice to Verizon (the full DMCA notice is included after the jump).

There are a bunch of problems with this. First of all, Dealbert is a search engine, pulling content from other sites. If there’s really infringing works on those other sites, then the liability should be on those other sites. If you look at the Perfect 10 rulings, the court noted that as a search engine, Google was not liable for what it found, and it seems that would likely apply to Dealbert as well (yes, the Perfect 10 ruling is technically only precedent in the 9th Circuit, but it’s been cited elsewhere and is generally considered to be the law).

Second, nowhere does Monster Cable explain what actually infringes and what copyright is infringed. The relevant part of the DMCA notice:

Under penalty of perjury, we hereby affirm that the undersigned is authorized to act on behalf of Monster Cable Products, Inc. whose exclusive copyright rights we believe to be infringed as described herein.

We have a good faith belief that the Internet site found at the following

http://dealbert.net/?qs=beats+by+dre&btnSubmit.x=0&btnSubmit.y=0&btnSubmit=Search http://dealbert.net/deal.php?id=3847653

infringes the rights of the Company by using Copyrights belonging to Monster Cable Products, Inc., including but not limited to: Monster Cable, Beats by Dr. Dre, Monster Turbine, and Heartbeats by Lady Gaga.

A court would have to decide, but given that Monster Cable swore under the penalty of perjury, I would argue this sounds like perjury. It’s claiming that its copyrights are being infringed, but the only things it seems to identify — Monster Cable, Beats by Dr. Dre, Monster Turbine, and Heartbeats by Lady Gaga — are all trademarks, not copyrights.

Whether or not you believe that Dealbert infringed on Monster’s trademarks, the DMCA does not cover trademarks. It’s for copyright only. Using the DMCA for non-copyrighted content, and claiming it is copyrighted is an abuse of the DMCA and could open up Monster Cable to significant fines, should Dealbert pursue the company in court.

On top of all this, rather than approaching Dealbert directly, Monster Cable went straight to Verizon, who at least was kind enough to pass the notice along to Dealbert, rather than simply pulling down the site. Dealbert’s response has been to remove the content in question, because it doesn’t want to risk having Verizon simply pull down its entire website.

However, it appears this is a gross abuse of the DMCA, by a company notorious for abusing IP laws. Historically, Monster has been quite aggressive over its trademarks and occasionally patents, but here it appears to be abusing copyright law by pretending its trademarks are copyright, and that the DMCA applies to them.

Filed Under: copyright, dmca, takedown, trademark
Companies: dealbert, monster cable

Monster Cable Keeps On Suing; Asks Court To Block Company From Attending CES

from the seriously,-monster? dept

By now, you must know that Monster Cable has a rather terrible reputation for threatening and suing all sorts of other companies over intellectual property issues — often, it seems, with very little merit (remember when they went after “Monster Golf”? good times…). The latest is that Monster Cable, along with Beats Electronics, are going after competitor Fanny Wang Headphones, claiming both patent and trade dress infringement, because Fanny Wang made headphones that have some similarities in style. The patent (D552,077), by the way, is not a utility patent but a design patent, which is very narrowly focused.

In reading through the actual lawsuit (embedded below), the basic complaint appears to be that Fanny Wang’s headphones look pretty similar to the Beats headphones — but that’s how competition works. Beats/Monster seem to take particular umbrage to the fact that all over their website Fanny Wang compares their headphones to Beats and gently chides Beats for not being the same quality. Again, this is how competition works. You see what works and you build something better. In fact, this point seems to undermine Beats/Monsters whole case: since Fanny Wang is making pretty clear that its products are different than Beats’. The response from Monster/Beats should be to keep building something better as well.

As you’d expect, Beats/Monster also demand all sorts of things (treble damages, destruction of all product, etc.). The complaint also points out that Fanny Wang is planning to be presenting its headphones at CES in early January, implicitly asking the court to stop Fanny Wang from appearing at the show. Remember, kids, the lesson of the day is “why compete, if you can have the government block your competition?”

Not surprisingly, Fanny Wang is using this as a chance to mock Monster for its litigious history and also for promoting its own product. The company’s letter in response to the lawsuit (also embedded below) is relatively amusing, mocking the company for not even trying out their headphones to find out about the superior sound quality:

In short, Fanny Wang has no desire to infringe on your patents or trade dress or be associated with Monster?s sound quality. Instead, Fanny Wang desires to compete by building a superior product marketed under our different and innovative brand: Fanny Wang. In fact, the comparisons that you make reference to in your complaint and letter, clearly demonstrate Fanny Wang?s desire to differentiate itself from Monster & Beats products by identifying differences and allowing the consumer to make its own determinations. Such passing references to competitors are routine in the marketplace and are clearly allowed under both state and federal trademark laws.

Separately, the company notes that tons of vendors in the space have similarly designed headphones because that’s the trend in the marketplace. It also mocks Beats/Monster for claiming that the packaging of the two sets of headphones are the same by stating: “Have you even looked at our site?” and posting the following comparison:

Filed Under: headphones, patents, trade dress, trademark
Companies: beats, fanny wang, monster cable

Monster Cable Gets Classifieds Search Engine Taken Down With Bogus DMCA Notice

from the abuse-of-the-dmca dept

It’s no secret that Monster Cable is a notorious abuser of intellectual property laws often just to try to get any other company using “Monster” anywhere in its name to pay up. Of course, it’s normally trademark law that it abuses. However, it looks like it may be abusing copyright law as well. Reader Archbishop pointed us to the news that the website Jaxed, which is a meta-classifieds search engine (it searches Craigslist, eBay and a few other sites via a single interface) recently had its entire site taken down after Monster Cable filed a DMCA notice against the site.

On Nov 2 2010 Monster Cable filed a DMCA copyright infringement notice to jaXed.com for “infringing” on Monster Cable Products copyrights. For unknown reasons, Monster Cable is upset that images of their products appeared on jaXed.com in classified and auction listings.

On Nov 4 2010 GoDaddy.com has taken down jaXed.com due to this complaint.

We will be working to bring the site back up as soon as we can.

Jaxed is back online now, saying that they removed the ability to do searches in the Electronics category. They’re not entirely sure if that was the problem, because the takedown does not say, but the company believes that it has something to do with the fact that some of the searches in that category showed Monster Cable products. Of course, it’s difficult to see how this was an infringement in any way, shape or form. First, the actual content was posted to other sites (Craigslist, eBay, etc.). Jaxed is just a search engine. Second, even if the content were on Jaxed, it’s people selling their products — which is unlikely to be a copyright violation (yes, it’s possible if they were using official photos there may be a slight issue, but hardly one worth issuing a DMCA takedown over). Jaxed suggests that Monster wanted it to police the site for counterfeit offerings, but as various cases against eBay over counterfeit goods have shown, the auction sites are not liable for any counterfeit goods listed directly. And it seems like an even further stretch to then say a search engine would be liable when the auction site itself is not.

Of course, even more disturbing is the fact that GoDaddy, the registrar for Jaxed, immediately pulled down the entire Jaxed site, over what seems like a clearly bogus DMCA notice. You would hope that a company like GoDaddy wouldn’t be quite so quick to pull the trigger. It’s also pretty weak that Monster Cable apparently went straight to GoDaddy, rather than complaining to Jaxed first (at which point, Jaxed could explain that they were just a search engine). Unfortunately, we’ve been seeing more and more examples of companies going straight to domain registrars with their takedown notices.

It’s not clear if Jaxed is fighting back against this, but the situation seems so ridiculous, that I’d imagine there are plenty of lawyers who would be interested in helping the site explain to Monster Cable that this is an abuse of the DMCA process.

Filed Under: dmca, search engine, takedown
Companies: jaxed, monster cable

Shocker: Monster Cable Still Up To Its Old Tricks

from the speaks-to-credibility-your-honor dept

Right after the first of the year, it looked like Monster Cable might be taking a new tack in its trademark “strategy”, after it dropped a lawsuit against a company called Monster Mini-Golf. Monster Cable has a long history of suing lots of business — no matter what line of work they’re in — that use the word monster in their name, but given the backlash against it and its subsequent apology in the mini-golf case, it seemed that maybe, just maybe it was changing its ways. That was false hope, apparently, as it’s now going after a company called Monster Transmission (via Engadget). The cable company apparently claims it “has no issue” with the transmission company, but that’s news to one of its owners. Monster Cable also claims the suit was filed before its backdown in the Monster Mini-Golf case, as if that’s supposed to make it okay. But if the company really “has no issue” — why not just withdraw the suit?

Filed Under: monster, trademarks
Companies: monster cable, monster transmission

Monster Cable Caves Again, With Oddly Worded Apology

from the monster-bullies dept

Well, it looks like after years and years of articles highlighting what an incredible trademark bully Monster Cable has been, the company has finally realized that maybe (sorta) it needs to reconsider its strategy (maybe). At least that’s what I take from the news that the company has settled its trademark dispute with Monster Mini Golf that got plenty of attention when the Monster Mini Golf folks took to eBay to get out the word about how they were being bullied.

At some point, Monster Cable realized it was losing the PR battle (really badly) in this whole thing, and tried a new tack, claiming that it was just a small family business doing what it was required to do to defend its trademarks. Then it offered up a bogus “deal” whereby it pulled the lawsuit it had filed but still demanded that Monster Mini Golf pay it to “license” the name, though it promised to donate the money to charity. That’s emotional bribery.

Either way, the matter was settled as 2008 came to a close when the top two folks from each company held a conference call without their lawyers present (initially, the lawyers were there, but they kicked them out). Monster Mini Golf can now go ahead with its trademark application and Monster Cable agreed to pay their legal fees. Monster Cable’s CEO even issued an apology (sorta). After talking up how nice it was to work out an amicable deal in person without lawyers, he states:

I will say that this is a landmark kind of situation, as public opinion wins over what is the right thing to do for trademark protection of a famous mark. We have made the decision that public opinion, and that of our valued customers is more important than the letter of the law that requires us to prevent the dilution of our mark risk losing it.

Of course, it’s not a landmark situation at all (even for Monster Cable — who’s been known to be on the receiving end of similar public relations nightmares for similar actions in the past). And, he’s wrong that this is a case where “public opinion wins over what is the right thing to do for trademark protection.” Monster Cable’s overly aggressive attempts to block pretty much anyone from using “Monster” are not “the right thing to do” — they’re abuse of the trademark process. Public opinion was right: Monster Cable was being a bully, and it only backed down because public opinion made that clear. It’s pretty weak in an apology for Monster Cable to act magnanimous for doing what the company should have done in the first place (i.e., leave Monster Mini Golf alone).

As for “the letter of the law” that only requires Monster Cable to police the use of its trademark in cases where there’s likely to be confusion or dilution in its areas of business. There is simply no way that any reasonable person (let alone the moron in a hurry who has shown up at various trademark lawsuits) would confuse Monster Cable with Monster Mini Golf — and thus the law does not require that Monster Cable stop others from using the word in those cases. While it’s nice that Monster Cable has finally come to its senses, the real question is how it acts the next time this happens — and given Monster Cable’s history, it’s likely to happen again soon.

Filed Under: trademark
Companies: monster cable, monster mini golf