Trade Mark Enforcement - A Monster Hassle Without Trade Mark Registration!

A recent decision of the Full Federal Court highlights the benefits to be obtained from registering a trade mark prior to commencing business, and the potential expense and inconvenience in enforcing your rights without a registration.

The facts

In Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCAFC 181, the appellant (Hansen) had manufactured and sold an energy drink under the brand MONSTER ENERGY since 2002. Sales were primarily in the United States, South and Central America and the Caribbean. The MONSTER ENERGY drinks had not been sold (other than via eBay) or directly promoted in Australia. Hansen had, however, engaged in "indirect advertising" and used the mark MONSTER ENERGY in the sponsorship of athletes, athletic competitions, music festivals and musicians to promote this product prior to launch in Australia. Hansen's activities were directed at raising awareness of its product among young adult males, specifically those aged 18 – 30