Director Stephanie Child designed, implemented, and analyzed a likelihood of confusion survey that helped strike down Monster Energy Company’s objection to our client’s proposed trademark.

The dispute concerned small business owner Brooke Comegys’s application at the Trademark Trial and Appeal Board (TTAB) for the use of the mark T***Y MONSTER [censored] in her clothing and apparel brand. Monster opposed her application on the grounds that consumers would confuse Comegys’s mark with Monster’s existing energy beverage brand.

Counsel for Comegys, Pryor Cashman LLC, retained Dr. Child to conduct a likelihood of confusion survey and to critique survey evidence offered by Monster’s experts. Dr. Child developed an Eveready survey, a format commonly accepted at the TTAB, to determine whether consumers of clothing and apparel products would be confused by Comegys’s mark. Dr. Child’s survey results conclusively demonstrated consumers weren’t confused by Comegys’s mark shown on clothing and apparel—in fact, even consumers familiar with the Monster Energy brand did not associate “T***y Monster” with Monster Energy Company.

Dr. Child also critiqued two surveys presented by Monster. While the opposition submitted surveys to establish Monster’s fame and distinctiveness in the beverage category, it showed no survey evidence regarding consumer confusion related to apparel products.

Monster Energy Company ultimately withdrew its opposition to Comegys’s mark and, on 24 October 2023, the TTAB dismissed Monster's opposition with prejudice.