UNITED STATES: TTAB Denies Cancellation of MONSTER ATHLETE

In its non-precedential decision Monster Energy Company v. Howard Vernick and Coulter Ventures, LLC d/b/a Rogue Fitness, Cancellation No. 92072010 (TTAB Jan. 30, 2025), the Trademark Trial and Appeal Board (Board) denied Monster Energy Company’s petition to cancel the registration for on abandonment grounds. Monster claimed a presumption of abandonment due to three years’ non-use between 2016 and 2019. During the pendency of the cancellation, Howard Vernick assigned his registration to Coulter Ventures in 2019, and the Board added Coulter Ventures as a co-defendant.

Monster argued that Coulter’s only plan for use of the MONSTER ATHLETE mark was to license use of it back to Mr. Vernick. In its trial brief, Monster argued that the assignment from Mr. Vernick was an assignment in gross (and therefore invalid) because Mr. Vernick had already abandoned the MONSTER ATHLETE mark at the time of the assignment. The Board agreed with Mr. Vernick that Monster did not plead this as a separate basis for cancellation and that therefore, this basis for cancellation in the trial brief could not be considered.

The Board found that because Coulter never used the MONSTER ATHLETE mark itself and because Mr. Vernick had been Coulter’s only licensee, “the relevant inquiry rests entirely on Vernick’s activities.” Mr. Vernick testified he had continuously used and promoted the MONSTER ATHLETE mark since 2011 to provide volleyball athletic training services as part of his small business; this included maintaining a website depicting the registered mark. Monster argued that when Mr. Vernick moved to Arizona in 2016, he abandoned the MONSTER ATHLETE mark through non-use between 2016 and 2019.

Monster argued that from late 2016 to late 2019, Mr. Vernick did not generate the same types of business documents that he had previously and that this was a “dramatic change” from his previous documentation. Based on its analysis of a detailed factual record, the Board found that the petitioner “overinflated” Mr. Vernick’s evidence of use from the earlier timeframe. Based on the record, the minimal documentary evidence of use between 2016 and 2019 was in line with Mr. Vernick’s ordinary course of trade under the mark. Further, the Board found that even if Mr. Vernick temporarily suspended use, he retained “the requisite intent to resume use to avoid abandonment.”

The Board found that the petitioner did not meet its burden of proving three consecutive years of non-use by a preponderance of the evidence and denied the petition to cancel.

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