Case 5:17-cv PSG-DTB Document 1 Filed 01/30/17 Page 1 of 36 Page ID #:1

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1 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 Steven J. Nataupsky (CA SBN ) steven.nataupsky@knobbe.com Lynda J. Zadra-Symes (CA SBN ) lynda.zadrasymes@knobbe.com Jason A. Champion (CA SBN ) jason.champion@knobbe.com Julianna M. Simon (CA SBN 0) julianna.simon@knobbe.com KNOBBE, MARTENS, OLSON & BEAR, LLP 0 Main Street, Fourteenth Floor Irvine, CA Phone: () 0-00 Facsimile: () 0-0 Attorneys for Plaintiff ENERGY COMPANY IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ENERGY COMPANY, a Delaware corporation, v. Plaintiff, THE NATURE S BOUNTY COMPANY. FKA NBTY, INC., a Delaware corporation; and MET-RX SUBSTRATE TECHOLOGY, INC., a California corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. :-CV-00 COMPLAINT FOR TRADEMARK INFRINGEMENT, FALSE DESIGNATION OF ORIGIN AND UNFAIR COMPETITION DEMAND FOR JURY TRIAL Plaintiff Monster Energy Company ( Plaintiff or Monster ) hereby complains of Defendants The Nature s Bounty Company FKA NBTY, Inc. ( NBTY ) and Met-RX Substrate Technology, Inc. ( Met-RX ) (collectively, Defendants ), and alleges as follows: --

2 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 JURISDICTION AND VENUE. This is an action for ) trademark infringement and false designation of origin under U.S.C. (a), ) trademark infringement under U.S.C., ) statutory trademark infringement under California Business & Professions Code, ) California common-law unfair competition, and ) unfair competition arising under California Business & Professions Code 0 et seq.. The Court has original subject matter jurisdiction over the claims that relate to trademark infringement and false designation of origin pursuant to U.S.C. and (a) and also pursuant to U.S.C. and, as these claims arise under the laws of the United States. The Court has supplemental jurisdiction over the claims in this Complaint which arise under state statutory and common law pursuant to U.S.C. (b) and (a), because the state law claims are so related to the federal claims that they form part of the same case or controversy and derive from a common nucleus of operative facts.. This Court has personal jurisdiction over Defendants because they have a continuous, systematic, and substantial presence within this Judicial District and within California. In addition, by committing acts of trademark infringement, false designation of origin, and unfair competition in this Judicial District, including, but not limited to, using infringing marks in connection with the advertisement, marketing, and promotion of products to customers in this Judicial District, Defendants acts form a substantial part of the events or omissions giving rise to Monster s claims.. Venue is proper in this Judicial District pursuant to U.S.C. (b) and (c) at least because Defendants reside in this Judicial District by --

3 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 virtue of doing business within the Judicial District and a substantial portion of the events complained of herein took place in this Judicial District. THE PARTIES. Monster is a corporation organized and existing under the laws of the State of Delaware, having a principal place of business at Monster Way, Corona, California.. Upon information and belief, NBTY is a corporation organized and existing under the laws of the State of Delaware, having a principal place of business at 00 Smithtown Ave, Ronkonkoma, New York. Defendant NBTY is subject to the personal jurisdiction of this Court by virtue of its substantial contacts with California, including its participation in the acts and events occurring in this Judicial District described herein. Specifically, on information and belief, NBTY is a national distributor of the infringing products. On information and belief, NBTY markets and advertises online the infringing products through the URL, which is available and accessible in California.. Upon information and belief, Met-RX is a corporation organized and existing under the laws of the State of California, having a principal place of business at 0 Orville Drive, Bohemia, New York. Defendant Met-RX is subject to the personal jurisdiction of this Court by virtue of its substantial contacts with California, including its participation in the acts and events occurring in this Judicial District described herein. COMMON ALLEGATIONS FOR ALL CLAIMS OF RELIEF A. Monster s Trademarks. Monster is a nationwide leader in the business of developing, marketing, selling, and distributing ready-to-drink beverages, including energy drinks. --

4 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. In 0, long before Defendants acts described herein, Monster launched its ENERGY drink brand, bearing its now-famous and ENERGY marks. 0. Since 0, Monster has also consistently used its mark to identify its ready-to-drink beverage product line. Monster s line of drinks now includes over 0 different products. Monster s family of drinks includes, but is not limited to, the following beverages: original Monster Energy and Lo-Carb Monster Energy, Monster Energy Gronk, Monster Assault, Juice Monster Khaos, Juice Monster Ripper ; Juice Monster Pipeline Punch, Ubermonster, Monster Energy Import; Punch Monster Baller s Blend TM ; Punch Monster Mad Dog, Monster Energy Unleaded ; Monster Energy Absolutely Zero, Monster Energy Zero Ultra, Monster Energy Ultra Blue, Monster Energy Ultra Red, Monster Energy Ultra Black, Monster Energy Ultra Citron, Monster Energy Ultra Sunrise, Monster Rehab, which is a line of fruit and tea flavored non-carbonated energy drinks that includes electrolytes, which includes s Monster Rehab Tea + Orangeade + Energy, Monster Rehab Tea + Pink Lemonade + Energy, Monster Rehab Tea + Lemonade + Energy, Monster Rehab Raspberry Tea + Energy, and Monster Rehab Peach Tea + Lemonade; Java Monster, which is a line of dairy based coffee plus energy drinks; Muscle Monster, which is a line of energy shakes, which include grams of protein to aid muscle recovery after a strenuous workout; Monster Energy Extra Strength Nitrous Technology, which is a line of energy drinks with a blend of nitrous oxide and carbon dioxide to create a smoother energy drink; and Monster Energy which is a five ounce super concentrated energy drink, among others (referred to collectively as " line of drinks"). --

5 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. Representative images showing some of the products in Monster s line of drinks are shown below:. Monster is also the owner of numerous trademark registrations for marks that incorporate its ENERGY, M ENERGY, and/or marks for use in connection with beverages and nutritional supplements including the following U.S. Trademark Registrations: --

6 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK ENERGY M ENERGY ENERGY REG. GOODS/SERVICES NO.,0, Nutritional supplements in liquid form, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not,0, Nutritional supplements in liquid form, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not,0,0 Fruit juice drinks having a juice content of 0% or less by volume that are shelf stable, carbonated soft drinks, carbonated drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not DATE REG. FILED DATE 0//0 0//0 0//0 0//0 0//0 0/0/0 --

7 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK M ENERGY ENERGY REG. GOODS/SERVICES NO.,, Beverages, namely, carbonated soft drinks, carbonated drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, carbonated energy or sports drinks, fruit juice drinks having a juice content of 0% or less by volume that are shelf stable, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not,0,0 Nutritional supplements in liquid form DATE REG. FILED DATE 0/0/0 0//0 0//0 0// ENERGY,0, Non-alcoholic beverages, namely, energy drinks, excluding perishable beverage products that contain fruit juice or soy 0//0 0// --

8 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK ENERGY REHAB JAVA REG. GOODS/SERVICES NO.,, Promoting goods and services in the sports, motorsports, electronic sports, and music industries through the distribution of printed, audio and visual promotional materials; promoting sports and music events and competitions for others,, Ready to drink tea, iced tea and tea based beverages; ready to drink flavored tea, iced tea and tea based beverages,, Beverages, namely, soft drinks; non-carbonated energy drinks; noncarbonated sports drinks; soft drinks and noncarbonated energy drinks, all enhanced with vitamins, minerals, nutrients, amino acids, and/or herbs, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not DATE REG. FILED DATE 0// 0// 0// 0// //0 0/0/ --

9 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK UNLEADED REHAB REG. GOODS/SERVICES NO.,0, Nutritional supplements; non-alcoholic drinks, namely, carbonated soft drinks, carbonated energy drinks, sports drinks, and soft drinks, energy drinks and sports drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs,, Nutritional supplements in liquid form; beverages, namely, non-alcoholic non-carbonated drinks enhanced with vitamins, minerals, nutrients, proteins, amino acids and/or herbs; noncarbonated energy or sports drinks, fruit juice drinks having a juice content of 0% or less by volume that are shelfstable; all the foregoing goods exclude perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not DATE REG. FILED DATE 0/0/ 0// 0/0/0 0// --

10 Case :-cv-00-psg-dtb Document Filed 0/0/ Page 0 of Page ID #:0 0 MARK MUSCLE MUSCLE REG. GOODS/SERVICES NO.,, Nutritional supplements in liquid form; beverages, namely, soft drinks; nonalcoholic and noncarbonated drinks enhanced with vitamins, minerals, nutrients, proteins, amino acids and/or herbs; noncarbonated energy or sports drinks; all the foregoing goods exclude perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not,, Vitamin fortified beverages; dairy-based beverages; dairy-based energy shakes; energy shakes; coffee energy shakes; chocolate energy shakes; ready to drink coffee based beverages; ready to drink chocolatebased beverages DATE REG. FILED DATE 0/0/0 0/0/ 0/0/ // -0-

11 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK ENERGY ULTRA RED ENERGY ULTRA BLUE REG. GOODS/SERVICES NO.,, Nutritional supplements in liquid form; vitamin fortified beverages; nonalcoholic beverages, namely, energy drinks, soft drinks, sports drinks, all enhanced with vitamins, minerals, nutrients, amino acids and/or herbs; all the foregoing goods exclude perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not,, Nutritional supplements in liquid form; vitamin fortified beverages; nonalcoholic beverages, namely, energy drinks, soft drinks, sports drinks, all enhanced with vitamins, minerals, nutrients, amino acids and/or herbs; all the foregoing goods exclude perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not DATE REG. FILED DATE 0// 0// 0/0/ 0// --

12 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK ENERGY ULTRA BLACK ENERGY ULTRA CITRON ENERGY ZERO ULTRA REG. GOODS/SERVICES NO.,0, Nutritional supplements in liquid form; Nonalcoholic beverages, namely, carbonated soft drinks, carbonated energy drinks, sports drinks, and soft drinks, energy drinks and sports drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs,, Nutritional supplements in liquid form; Nonalcoholic beverages, namely, carbonated soft drinks, carbonated energy drinks, sports drinks, and soft drinks, energy drinks and sports drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs,, Nutritional supplements in liquid form; Nonalcoholic beverages, namely, soft drinks, carbonated soft drinks, energy drinks, sports drinks; energy drinks and sports drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs DATE REG. FILED DATE 0// // 0// // // 0/0/ --

13 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK JUICE ASSAULT ASSAULT M ENERGY REG. GOODS/SERVICES DATE REG. NO. FILED DATE,,0 Nutritional supplements 0// 0/0/ in liquid form; Nonalcoholic beverages, namely, energy drinks and drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, but excluding perishable beverage products that contain fruit juice or soy.,,0 Nutritional supplements // /0/ in liquid form; vitamin fortified beverages; Nonalcoholic beverages, namely, energy drinks, energy drinks flavored with juice, sports drinks, all enhanced with vitamins, minerals, nutrients, proteins, amino acids, and/or herbs, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not,, Beverages, namely, 0//0 0/0/ carbonated drinks enhanced with vitamins, minerals, nutrients, amino acids, and/or herbs; carbonated and noncarbonated energy drinks --

14 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK PUNCH REG. GOODS/SERVICES NO.,0, Nutritional supplements in liquid form; vitamin fortified beverages; Nonalcoholic beverages, namely, energy drinks, energy drinks flavored with juice, sports drinks, all enhanced with vitamins, minerals, nutrients, proteins, amino acids, and/or herbs, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not UBER,, Nutritional supplements in liquid form; beverages, namely, carbonated soft drinks; non-alcoholic carbonated soft drinks and energy drinks enhanced with vitamins, minerals, nutrients, proteins, amino acids and/or herbs; carbonated energy drinks and sports drinks, all the foregoing goods exclude perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not -- DATE REG. FILED DATE // 0// 0/0/0 0/0/

15 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK LO-CARB ENERGY ENERGY UNLEADED REG. GOODS/SERVICES DATE REG. NO. FILED DATE,, Nutritional supplements; 0//0 0//0 non-alcoholic beverages, namely, energy drinks, drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs,, Nutritional supplements 0// 0// in liquid form; Nonalcoholic beverages, namely, carbonated soft drinks, carbonated and non-carbonated energy drinks, sports drinks, and soft drinks, energy drinks and sports drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs. Attached hereto as Exhibits A-A are true and correct copies of Monster s trademark registrations identified above.. Pursuant to U.S.C. 0, U.S. Trademark Registration Nos.,0,,,0,,,0,0,,,,,,, and,, are incontestable.. Monster is also the owner of the following California trademark registration for for use in connection with beverages: --

16 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 MARK REG. NO. GOODS/SERVICES DATE FILED REG. DATE 0 Fruit juice drinks, soft drinks, 0//0 0//0 carbonated soft drinks and soft drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, aerated water, soda water and seltzer water. Attached hereto as Exhibit B is a true and correct copy of Monster s California trademark registration identified above. Collectively, the common law trademark rights referenced in paragraphs through and the registrations and trademarks referenced in paragraphs and of this Complaint, including all common law rights therein, are referred to as the Marks.. Since Monster s initial launch of its original ENERGY drinks in 0, and prior to Defendants acts described herein, Monster has continuously used its Marks in connection with its line of drinks and in extensive and widespread promotional, advertising and marketing activities relating to those products. Since 0, Monster has spent approximately $. billion marketing and promoting the brand. Monster has grown into an international brand, as its products are now sold in approximately countries and territories worldwide.. Monster has and continues to widely market and promote its Marks in the industry and to consumers by displaying the Marks on more than. billion cans sold worldwide to date. Monster s promotional efforts also include by way of example but not limitation widespread distribution of promotional and point of sale materials, product samplings, apparel and merchandise bearing the Marks, in --

17 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 magazines and other industry publications, on the ENERGY website and other Internet websites, attendance at trade shows, and sponsorship of concert tours, live events, athletes, athletic teams, and athletic competitions around the world.. Shown below are true and accurate representative images illustrating just a few examples of Monster s point of sale materials bearing Monster s Marks:. As of, Monster sponsors the Ultimate Fighting Championship ( UFC ) as its official energy drink partner (excluding in Brazil). At least one of the Marks appears on the fighter gate vertical bumpers of the UFC s Octagon for most live UFC events, excluding those which take place in Brazil. --

18 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. Monster also sponsors or has previously sponsored more than 0 athletes or athletic teams who compete in a wide-variety of sports, including but not limited to athletes competing in the UFC, the X Games, the Winter X Games, ENERGY AMA Supercross motorcycle racing, Formula One automobile racing, Road Racing World Championship Grand Prix motorcycle racing ( MotoGP ), NASCAR, Professional Bull Riding, the Kentucky Derby and the National Football League ( NFL ). For example, as of November, Monster sponsors Rob Gronkowski, a professional football player who plays for the NFL s New England Patriots. In, Gronkowski set NFL single-season records for touchdowns and receiving yards by a tight end and became the first tight end in NFL history to lead the conference in scoring. Monster also sells and distributes an energy drink called Gronk, which prominently features Gronkowski s nickname, image, and signature, as well as the mark. Gronkowski is often pictured drinking one of Monster s line of drinks and/or wearing clothing bearing the Marks. Representative images of Monster s sponsorship of Gronkowski are shown below. --

19 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. In addition, in November, Monster entered into a sponsorship agreement with Tiger Woods, one of the greatest golfers of all time. When competing, at public appearances, or both, the sponsored athletes and team members almost always wear clothing or use equipment that prominently display the Marks. Through Monster s sponsorships, millions of consumers have been exposed to the Marks when they watch the athletes and teams compete at events many of which are televised nationwide or see the athletes at public appearances or in Internet postings and magazines.. In addition to UFC events, Monster sponsors numerous other athletic events in connection with its line of drinks, apparel, and accessories bearing the Marks. For example, in December, Monster announced that it will be the new title sponsor of America s premier NASCAR stock car racing series, which will now be called the ENERGY NASCAR SERIES. NASCAR races are widely broadcast worldwide in about 0 countries. Monster also sponsors or has sponsored the X Games, --

20 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 the ENERGY AMA Supercross Series, MotoGP races, the ENERGY Pipeline Pro Surf event, the ENERGY Speedway World Championship, the Professional Bull Riders bull riding series and its plus events in cities around the United States (televised in the United States on CBS), the ENERGY Billabong XXL Awards, Street League Skateboarding events, Arenacross events, the Off-Road Championship event (TORC), SCORE Off-Road Racing events, King of the Hammers desert racing event, and the Pole Position racing events, among others. Some examples of Monster s sponsorships in those areas are shown, for example, below: --

21 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. Monster s line of drinks has achieved substantial commercial success. Worldwide retail sales now exceed billion cans per year, with estimated retail sales at approximately $ billion per year worldwide. Monster s brand has established itself as the best-selling energy drink brand in the United States by unit volume.. As a result of Monster s substantial use and promotion of its Marks, the marks have acquired great value as specific identifiers of Monster s products and serve to identify and distinguish Monster s products from those of others. Customers in this Judicial District and elsewhere readily recognize the Marks as distinctive designations of the origin of Monster s brand of drinks and other products and promotional items. The Marks are intellectual property assets of enormous value as symbols of Monster and its quality products, reputation, and goodwill. B. Defendants Infringing Activities. On information and belief, Defendants are engaged in the business of manufacturing, distributing, marketing and/or selling ready-to-drink beverages and nutritional supplements, as well as other products nationwide. Defendants also operate the respective websites and and the following social media accounts: --

22 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: and Without permission or consent from Monster, Defendants have used and are using a mark that is confusingly similar to the Marks to advertise, market, and/or promote Defendants products. Specifically, beginning in April, Defendants have used and continue to use the mark LOVE THE in nationwide television spots, bus ads, press releases, and social media campaigns to advertise, market, and/or promote their line of ready-to-drink beverages and nutritional supplements. Some examples of Defendants advertisements and use are shown below: --

23 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 --

24 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. In addition to their unauthorized use of the LOVE THE mark, Defendants market, advertise, and promote their ready-todrink beverages and nutritional supplements in a manner similar to Monster. For example, following Monster s sponsorship of Rob Gronkowski, Defendants entered into an agreement with NFL player Joey Bosa, a defensive end for the Los Angeles Chargers, formerly known as the San Diego Chargers. Similar to Monster s use of Gronkowski, Defendants use Bosa as a brand spokesperson who is often pictured wearing Met-RX clothing and drinking Met-RX products in advertisements displaying the mark LOVE THE :. Defendants line of ready-to-drink beverages and nutritional supplements includes both ready-to-drink protein beverages, such as Defendants Ultra Recovery High Protein Milk Shakes, and ready-to-drink hydration beverages such as Defendants Super Hydrate Sports Drinks. 0. On information and belief, Defendants manufacture and distribute their ready-to-drink beverages to retail outlets, including grocery stores and major retailers such as Wal-Mart, Amazon, Jet, and to fitness facilities, such as Gold s Gym. --

25 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. Monster s products and Defendants products are ready-to-drink beverages that travel in the same channels of trade and are sold to the same consumers.. Defendants are clearly aware of Monster and its valuable Marks as evidenced by their use of the confusingly similar LOVE THE mark. Defendants are also aware of Monster and its Marks from the multiple letters Monster s counsel sent to Defendants counsel, demanding that Defendants cease use of the LOVE THE mark.. Defendants are not affiliated with Monster. At no time has Monster granted Defendants license, permission, or authority to use or display Monster s Marks.. Defendants have attempted to capitalize on Monster s valuable reputation and customer goodwill in the Marks by using the confusingly similar LOVE THE mark in a manner that is likely to cause consumers and potential consumers to believe that Defendants products are associated with Monster or Monster s products, when they are not.. Without permission or consent from Monster, Defendants have infringed the Marks in interstate commerce by promoting, advertising, and/or promoting ready-to-drink beverages using a mark that is confusingly similar to Monster s Marks.. Upon information and belief, Defendants actions alleged herein are intended to cause confusion, mistake, or deception as to the source of the Defendants products.. Upon information and belief, Defendants actions alleged herein are intended to cause consumers and potential consumers to believe that --

26 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 Defendants business and the goods that Defendants offer are associated with Monster or Monster s products, when they are not.. By virtue of the acts complained of herein, Defendants have created a likelihood of injury to Monster s business reputation and goodwill, caused a likelihood of consumer confusion, mistake, and deception as to the source of origin or relationship of Monster s goods and Defendants products, and have otherwise competed unfairly with Monster by unlawfully trading on and using Monster s Marks without Monster s permission or consent.. Upon information and belief, Defendants acts complained of herein are willful and deliberate. 0. Defendants acts complained of herein have caused damage to Monster in an amount to be determined at trial, and such damages will continue to increase unless Defendants are enjoined from their wrongful acts and infringement.. Defendants acts complained of herein have caused Monster to suffer irreparable injury to its business. Monster will suffer substantial loss of goodwill and reputation unless and until Defendants are preliminarily and permanently enjoined from the wrongful acts complained of herein. FIRST CLAIM FOR RELIEF (Trademark Infringement and False Designation of Origin Under U.S.C. (a)). Monster hereby repeats, realleges, and incorporates by reference paragraphs - of this Complaint as though fully set forth herein.. This is an action for trademark infringement and false designation of origin arising under U.S.C. (a).. As a result of the widespread use and promotion of Monster s Marks, the Marks have acquired strong fame and --

27 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 secondary meaning to consumers and potential customers, in that consumers and potential customers have come to associate the Marks with Monster.. Defendants have infringed the Marks, and created a false designation of origin, by using in commerce, without Monster s permission, the confusingly similar mark LOVE THE in connection with the advertisement, offering for sale, and/or sale of Defendants products, including ready-to-drink beverages.. Defendants actions are likely to cause confusion and mistake, or to deceive as to the affiliation, connection, or association of Monster with Defendants, and/or as to the origin, sponsorship, or approval of Defendants products or Defendants commercial activities, in violation of U.S.C. (a).. Upon information and belief, Defendants did so with the intent to trade upon Monster s reputation and goodwill by causing confusion and mistake among customers and the public and to deceive the public into believing that Defendants products are associated with, sponsored by or approved by Monster, when they are not.. Upon information and belief, Defendants had actual knowledge of Monster s ownership and prior use of the Marks, and without the consent of Monster, willfully violated U.S.C. (a).. Defendants, by their actions, have damaged Monster in an amount to be determined at trial. 0. Defendants, by their actions, have irreparably injured Monster. Such irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Monster s rights, for which Monster has no adequate remedy at law. --

28 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 SECOND CLAIM FOR RELIEF (Trademark Infringement Under U.S.C. ). Monster hereby repeats, realleges, and incorporates by reference paragraphs -0 of this Complaint as though fully set forth herein... This is a claim for trademark infringement arising under U.S.C.. Monster owns valid and enforceable federally registered trademarks for the Marks, including at least the registrations listed in paragraph above.. Defendants have used in commerce, without permission from Monster, colorable imitations, and/or confusingly similar marks to Monster s Marks that are the subject of at least Monster s U.S. Trademark Registration Nos.,0,;,0,;,0,0;,,;,0,0;,0,;,,;,,;,,;,0,;,,;,,;,,;,,;,,;,0,;,,;,,;,,0;,,0;,,;,0,;,,;,,; and,, in connection with the advertising, marketing, and/or promoting of Defendants products, including ready-to-drink beverages. Such use is likely to cause confusion or mistake, or to deceive.. Upon information and belief, the activities of Defendants complained of herein constitute willful and intentional infringements of Monster s registered marks, and Defendants did so with the intent to trade upon Monster s reputation and goodwill by causing confusion and mistake among customers and the public and to deceive the public into believing that Defendants products are associated with, sponsored by, originated from, or are approved by, Monster, when they are not. --

29 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. Upon information and belief, Defendants had actual knowledge of Monster s ownership and prior use of the Marks, and have willfully violated U.S.C... Defendants, by their actions, have damaged Monster in an amount to be determined at trial.. Defendants, by their actions, have irreparably injured Monster. Such irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Monster s rights, for which Monster has no adequate remedy at law. THIRD CLAIM FOR RELIEF (Statutory Trademark Infringement Under California Business & Professions Code ). Monster hereby repeats, realleges, and incorporates by reference paragraphs - of this Complaint as though fully set forth herein. 0. This is an action for statutory trademark infringement under California Business & Professions Code.. Monster registered the mark in connection with drinks and owns California Trademark Registration No. 0,.. Defendants have used and are using in commerce reproductions, counterfeits, copies, or colorable imitations of Monster s trademark in connection with the advertisement, display, promotion, marketing, distribution, sale and/or offer for sale of Defendants products, including readyto-drink beverages. trademarks.. Monster has not authorized or consented to Defendants' use of its. Defendants' unauthorized use of the LOVE THE mark is likely to cause confusion, or to cause mistake, or to deceive as to the source of --

30 Case :-cv-00-psg-dtb Document Filed 0/0/ Page 0 of Page ID #:0 0 origin of Defendants products, in violation of California Business and Professions Code.. Defendants acted willfully, with the intent to harm Monster, and to trade on Monster s reputation and goodwill.. On information and belief, Defendants profited from their infringing conduct.. Defendants, by their actions, have damaged Monster in an amount to be determined at trial.. Defendants, by their actions, have irreparably injured Monster. Such irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Monster s rights, for which Monster has no adequate remedy at law. FOURTH CLAIM FOR RELIEF (Unfair Competition Under California Business & Professions Code 0 et seq.). Monster hereby repeats, realleges, and incorporates by reference paragraphs - of this Complaint as though fully set forth herein. 0. This is an action for unfair competition under California Business & Professions Code 0, et seq.. By virtue of the acts complained of herein, Defendants have intentionally caused a likelihood of confusion among consumers and the public and have unfairly competed in violation of Cal. Bus. & Prof. Code 0, et seq.. Defendants acts complained of herein constitute trademark infringement, unfair competition, and unlawful, unfair, malicious or fraudulent business practices, which have injured and damaged Monster.. Defendants, by their actions, have irreparably injured Monster. Such irreparable injury will continue unless Defendants are preliminarily and -0-

31 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 permanently enjoined by this Court from further violation of Monster s rights, for which Monster has no adequate remedy at law. FIFTH CLAIM FOR RELIEF (California Common Law Unfair Competition). MEC hereby repeats, realleges, and incorporates by reference paragraphs - of this Complaint as though fully set forth herein.. This is an action for unfair competition under the common law of the State of California.. Defendants acts complained of herein constitute trademark infringement and unfair competition under the common law of the State of California.. By virtue of the acts complained of herein, Defendants have willfully and intentionally caused a likelihood of confusion among the purchasing public in this Judicial District and elsewhere, thereby unfairly competing with Monster in violation of the common law of the State of California.. Defendants aforementioned acts have damaged Monster in an amount to be determined at trial.. Defendants have irreparably injured Monster. Such irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Monster s rights, for which Monster has no adequate remedy at law. 0. Defendants willful acts of unfair competition under California common law constitute fraud, oppression and malice. Accordingly, Monster is entitled to exemplary damages pursuant to Cal. Civ. Code Section (a). PRAYER FOR RELIEF WHEREFORE, Monster prays for judgment against Defendants as follows: --

32 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. That the Court render a final judgment in favor of Monster and against Defendants on all claims for relief alleged herein;. That the Court render a final judgment that Defendants have violated the provisions of U.S.C. (a) by willfully infringing the Marks by using a false designation of origin, false description or false representation through the marketing, sale and promotion of Defendants products, including ready-to-drink beverages;. That the Court render a final judgment that Defendants have willfully violated the provisions of U.S.C. by infringing Monster s trademark rights in at least the marks that are the subject of U.S. Trademark Registration Nos.,0,;,0,;,0,0;,,;,0,0;,0,;,,;,,;,,;,0,;,,;,,;,,;,,;,,;,0,;,,;,,;,,0;,,0;,,;,0,;,,;,,; and,,;. That the Court render a final judgment that Defendants have violated the provisions of California Business & Professions Code by willfully infringing the trademark by using a false designation of origin, false description or false representation through the marketing, sale and promotion of Defendants products, including ready-to-drink beverages;. That the Court render a final judgment declaring that Defendants have violated California Business and Professions Code 0, et seq. by committing trademark infringement and unfairly competing with Monster;. That the Court render a final judgment declaring Defendants have violated California common law by unfairly competing with MEC;. That Defendants, their agents, servants, employees, attorneys, successors, and assigns, and all other persons in active concert or participation --

33 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 with any of them who receive actual notice of the injunction by personal service or otherwise, be forthwith preliminarily and permanently enjoined from: a. using the mark LOVE THE in connection with the advertising, promotion, or sale of beverages or nutritional supplements, using any of the Marks in connection with Defendants products, using any of the Marks in advertising or promoting Defendants products, and/or using confusingly similar variations of any of the Marks in any manner that is likely to create the impression that Defendants products originate from Monster, are endorsed by Monster, or are connected in any way with Monster; b. manufacturing, distributing, shipping, importing, reproducing, displaying, advertising, marketing, promoting, transferring, selling, and/or offering to sell any unauthorized products bearing any of the Marks and/or any confusingly similar marks; c. filing any applications for registration of any trademarks, trade dress, or designs confusingly similar to the Marks; d. otherwise infringing any of the Marks or any of Monster s other trademarks; e. falsely designating the origin of Defendants products; f. unfairly competing with Monster in any manner whatsoever; and g. causing a likelihood of confusion or injury to Monster s business reputation;. That Defendants be directed to file with this Court and serve on Monster within thirty (0) days after the service of the injunction, a report, in writing, under oath, setting forth in detail the manner and form in which it has complied with the injunction pursuant to U.S.C.. --

34 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0. That Defendants be required to account to Monster for any and all profits derived by Defendants and all damages sustained by Monster by virtue of Defendants acts complained of herein; 0. That Defendants be ordered to pay over to Monster all damages which Monster has sustained as a consequence of the acts complained of herein, subject to proof at trial, together with prejudgment and post-judgment interest;. That this case be deemed exceptional and the amount of the damages be trebled and that the amount of profits be increased by as many times as the Court deems appropriate, pursuant to U.S.C. ;. That an award of treble damages be awarded to Monster pursuant to Cal. Bus. & Prof. Code 0(a);. That Monster be awarded exemplary damages from Defendants pursuant to Cal. Civ. Code. ;. That Defendants actions be deemed willful;. That an award of reasonable costs, expenses, and attorneys fees be awarded to Monster pursuant to at least U.S.C. ;. That Defendants be required to deliver and destroy all devices, literature, advertising, goods and other unauthorized materials bearing the LOVE THE mark, any of the Marks or any confusingly similar marks, pursuant to U.S.C. ;. That Monster be awarded restitution and disgorgement; and. That Monster be awarded such other and further relief as this Court may deem just. --

35 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 Dated: January 0, Respectfully submitted, KNOBBE, MARTENS, OLSON & BEAR, LLP By: /s/ Lynda J. Zadra-Symes Steven J. Nataupsky Lynda J. Zadra-Symes Jason A. Champion Julianna M. Simon Attorneys for Plaintiff, ENERGY COMPANY --

36 Case :-cv-00-psg-dtb Document Filed 0/0/ Page of Page ID #: 0 DEMAND FOR TRIAL BY JURY Pursuant to Rule (b) of the Federal Rules of Civil Procedure, Plaintiff Monster Energy Company hereby demands a trial by jury on all issues so triable. Dated: January 0, Respectfully submitted, KNOBBE, MARTENS, OLSON & BEAR, LLP By: /s/ Lynda J. Zadra-Symes Steven J. Nataupsky Lynda J. Zadra-Symes Jason A. Champion Julianna M. Simon Attorneys for Plaintiff, ENERGY COMPANY --