Trademark Showdown: Monster vs Raptors

While the Toronto Raptors take on the Golden State Warriors in the NBA finals, the Raptors are also facing a different threat from South of the border. Raptors fever has sparked a renewed interest in a 4-year old legal battle between Canada’s Team and Monster Energy Drink over alleged similarities in the organizations’ logos.

Trademarks are registered with specific uses in mind and one might not expect to see the Raptors and Monster Energy locking horns (or claws) over an intellectual property dispute. However, both organizations’ trademark registrations extend far beyond the logos on the player’s jerseys and the marks on beverage cans. Both the Raps and Monster Energy have registered their trademarks to be used on common SWAG – anything from cuff links to Christmas tree ornaments. Cue the tip off.

Monster Energy is arguing that the two logos are confusing. In the Canadian context, the Federal Court of Appeal has created the following test to be used to determine if there is confusion:

“…the court must ask itself whether, as a matter of first impression in the minds of an ordinary person having a vague recollection of that other mark or name, the use of both marks or names in the same area in the same manner is likely to lead to the inference that the services associated with those marks or names are performed by the same person, whether or not the services are of the same general class.”

The Canadian Trademarks Act also sets out a list of factors to be considered when determining if two marks are confusing:

  • ·The inherent distinctiveness of the trademarks or trade names and the extent to which they have become known;

  • The length of time the trademarks or trade names have been in use;

  • The nature of the wares, service or business;

  • The nature of the trade; and

  • The degree of resemblance between the trademarks or trade names in appearance or sound or in the ideas suggested by them.

So what do you think? Are you confused?

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David Spencetrademarks