Monster Energy Company v Health and Happiness (H&H) Hong Kong Limited [2021] SGIPOS 14

Tribunal/Court:

IPOS

 

Type:

Opposition

 

Applicant’s Mark ("Application Mark"):

Singapore Trade Mark Application No. 40201810156W for “” in Class 35

[Sales promotion for others; Provision of an on-line marketplace for buyers and sellers of goods and services; Advertising; Commercial intermediation services; Organisation of exhibitions for commercial or advertising purposes; Provision of commercial and business contact information; Market studies; Business management and organization consultancy; Marketing; Negotiation and conclusion of commercial transactions for third parties.]

 

Opponent’s Earlier Marks:

1. Singapore Trade Mark No. T0601902F for “” in Class 32

[Fruit juice drinks, soft drinks, carbonated soft drinks and soft drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, aerated water, soda water and seltzer water.]

 

2. Singapore Trade Mark No. T1202150I for “” in the following classes:

• Class 5 [Nutritional supplements in liquid form]; and
• Class 32 [Non-alcoholic beverages, namely energy drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs (other than for medicated use)].

 

3. Singapore Trade Mark No. T1402590J for “” in the following classes:

• Class 5 [Nutritional supplements]; and
• Class 32 [Non-alcoholic beverages].

 

4. Singapore Trade Mark No. T1108653D for “” in the following classes:

• Class 5 [Nutritional supplements in liquid form]; 
• Class 30 [Ready to drink tea, iced tea and tea based beverages; ready to drink flavored tea, iced tea and tea based beverages]; and
• Class 32 [Non-alcoholic beverages, namely, energy drinks, sports drinks and fruit juice drinks; all the foregoing enhanced with vitamins, minerals, nutrients, proteins, amino acids and/or herbs].

 

5. Singapore Trade Mark No. 40201606883W for “” in the following classes:

• Class 30 [Coffee, tea, cocoa and artificial coffee; coffee based beverages; tea-based beverages; chocolate-based beverages; rice; tapioca and sago; flour and preparations made from cereals; bread, pastry and confectionery; ices; sugar, honey, treacle; yeast, baking-powder; salt; mustard; vinegar, sauces (condiments); spices; ice]; and
• Class 32 [Non-alcoholic beverages; beer].

 

Procedural History:

This trade mark opposition was commenced by Monster Energy Company, owner of the registered “” and “” trade marks above in Class 05, 30 and 32 (i.e., for nutritional supplements and various beverages etc.) against Health and Happiness (H&H) Hong Kong Limited, a competitor’s application to register “” in Class 35 for advertising/marketing/sale promotion services etc.

 

Claim(s)/Issue(s):

The Application Mark is similar to the Opponent’s Mark.

 

Decision:

Opposition failed. Application Mark will proceed to registration.

 

The Opponent has failed the three-step test for the opposition matter to succeed:

 

1. Competing marks are similar;

​When observed in their totality (i.e., visually, aurally and conceptually), the Registrar has concluded that the Opponent’s Earlier Marks are more dissimilar than similar as compared to the Applicant’s Mark.

 

2. Goods/services under the marks are similar/identical; and

The Registrar has noted that the Application Mark was filed in Class 35 for services relating to sales, advertising and marketing etc., whereas none of the Opponent’s earlier mark are registered for services. The Opponent has argued that services under the Application Mark are complementary, and thus, similar to the goods covered under the Opponent’s Earlier Marks.

The Registrar has rejected the Opponent’s arguments on the above and found no similarity between the goods and services in issue. The Registrar has noted that the uses and users of the respective goods and services are very different: on one side are consumer goods whereas on the other are services that are typically engaged by businesses. The same can be said for their nature, as well as the relevant trade channels.

 

3. There is a likelihood of confusion.

As the Registrar has found the Application Mark and the Opponent’s Earlier Marks to be dissimilar, he has opined that there can be no confusion where there is no similarity at all.