22 Oct 2009 @ 9:03 AM 

I can’t help but think I’m going to be a little bit of a wet blanket, but I’ve been thinking a bunch about all of this.
Victory for Vermonster.
Aside from my original post on this a couple of weeks ago, while I was in the midst of an awesome head cold, I’ve been pretty quiet about the Monster v. Vermonster thing. A little bit of that has been in knee-jerk reaction to the intense outpouring of — well… noise — that happened around the internet in general right around the same time I posted my piece. A little bit of it was because the whole thing played out in a way that really kind of surprised me.

Social media is a measurement of fads. Not to say that social media, itself, is a fad (I think it’s here to stay) or that this case was somehow illegitimate and doesn’t deserve the attention it received, but the push that this particular story received via social media feels like a fad, and the notion that Tweeters somehow saved this beer feels like even more of group hallucination. I still think that Monster acted rashly and irresponsibly through this entire process and that the whole thing should have been a quick and quiet conversation between lawyers. Maybe hindsight is 20/20, but at the same time, if you’re running a publicly traded corporate entity, you should be good enough to respond to bumps in the road without making bizarre mistakes. There will be a lot of lessons learned out of this, mostly by large companies and lawyers.

Anyway.. fads and social media.

If you want to see an interesting social phenomenon, keep an eye out on the Twitter Trending Topics. It’s that list just below the search box. (Twitter users: Note how many of those are hash tags and quit already. You don’t need to hash tag every damn post.) Trending topics are a sociology dissertation waiting to happen. They represent the most popular current topics on Twitter. They range from popular news items to celebrities to funny hash tags (yes, okay). It’s like a snapshot of pop culture.

As far as I know, Rock Art and/or Boycott Monster were never in the Twitter Trending Topics list, but it didn’t matter. The noise generated by different aspects of social media – a dedicated Facebook group (15,000 members), a Care2 Petition (1,300 signatures), and shit-ton of Twitter traffic – was enough to get noticed by a few national media outlets at which point Hansen’s felt like there was undue pressure, primarily because it was damaging the reputation of their company and their product.

So, did social media save Vermonster? In a sense. My opinion is that Rock Art saved Vermonster; I’ll get to that in a sec. It’s my feeling that social media got the attention of larger parties (the national media and, eventually, Bernie Sanders (I-VT)) to get the issue resolved in a much faster, but much messier, way than I believe it would have been originally resolved.

To that end, go social media! Good work. Kudos to you. You texted like champs.

Now, I’m not party to everything that went on, nor am I any sort of lawyer – trademark, or otherwise – but I think this whole thing got blown way – and I mean WAY – out of proportion:

To my understanding, Rock Art was issued a Cease and Desist letter from attorneys hired by Hansen’s Beverage, namely one Continental Enterprises.

It’s a standard tactic used to protect your trademarks. Basically, if you have filed for a trademark and somebody else is doing something that could cause confusion of that trademark, it is your obligation as the trademark holder to ask them to stop. If you do not, and do not continually file statements of use, the trademark may be considered abandoned and you run the risk of losing it. Basically, a trademark is as good as your branding initiative and your team of lawyers. If you suck at keeping your brand, you risk losing the right to exclusively use said trademark. So what do you do? You send letters to people who may be infringing upon your trademark and you ask them to stop doing so.

Of course, this only works when somebody is actually doing something that is similar to your trademark. The trademark for an energy drink in no way resembles the trademark for a fermented beverage. There’s a really nice rundown of many of the trademarks involved at PJ’s blog Starting a Brewery.

This particular company – CE – apparently has a reputation for aggressively stretching the boundaries of trademark law. They’ve previously acted, for other companies, in pretty much exactly the same way they did in this instance. In case you missed it, C&D letters were also issued to BevReview.com (for posting an image of a Monster Energy Drink in a review in their forums), as well as actor Trygve Lode for being photographed with a Monster Energy Drink, whilst in costume as a monster (seen to the left). I wish I was making this up, but I’m not.

The actions are akin – to me, anyway – to those troll debt collection agencies. The ones that buy up a bunch of debt from companies at a significant discount and then attempt to collect on the full value of said debt, regardless of the fact that it may have been paid already, non-existant, held by dead people, whatever. They’re the kind of people that send you sternly worded letters with items in it that say things like, “Failure to respond to this request in writing within 30 days constitutes your agreement that you are liable for this debt.” It’s kind of slimy, but it picks off the low-hanging fruit and makes them money.

Similarly, these types of C&D letters are meant to stop the people who don’t want to bother arguing and will just comply immediately because it’s easier to stop using a name somewhere than it is to pay your lawyer a few hundred dollars to draft a response letter saying, “Your trademark and my product are entirely dissimilar. Please go away.” but in really official lawyery terms. A Cease and Desist Letter is not a lawsuit. It is a letter saying, “please stop doing this or we will consider taking you to court.”

The good folks at Rock Art, completely understandably, got scared. They’re a small company getting what appears, at least on the surface, to be a threat from a multi-billion dollar company. Further complicating the matters, they attempted to use the telephone to take care of the matter. CE stood up for themselves because – hey, they were just doing what their client hired them to do, back off man! The people at Hansen’s probably had no idea what CE was even up to, because that’s why you hire other companies – so you don’t have to worry about what they’re up to. Rock Art felt like they weren’t getting due response from these companies that he was calling – and he probably wasn’t – got frustrated, and dealt with the issue the only way he could think of.

Where everything gets bizarre, to me, is where social media starts to pick up on it. Once the wave of sympathy started moving for Rock Art the flood gates kind of opened up. Matt, at Rock Art, made a video with a couple of friends of his pleading his case – and quite compellingly, I might add (heck, I posted it, he really plead his ‘little guy’ case quite well) – and it went viral. All of a sudden, you’ve got this really compelling David v. Goliath story making the rounds and it’s centered around a couple of great topics: small business (the hard working American) vs. big business (faceless corporation) and it all had to do with everybody’s favorite working-class-beverage (I hate that, even if it’s true): beer!

Then somebody brought up the word boycott. Consumers think boycotts are fun, because it reminds them that they actually hold power over corporations. Indeed! Stop buying goods from a company and they will (eventually) do poorly. The reason consumers like boycotts is because they aren’t working for a company that’s being boycotted, but I digress.

I have a hard time believing that a 2 – 3 week boycott by Vermont distributors and random craft beer drinkers around the country did anything to hurt Hansen’s bottom line. Much more likely, they were worried about their reputation being tarnished in the long run. Too late, Hansen’s. Too late.

From what I understand, once things started getting pushed around on social media and local news outlets, Matt Nadeau at Rock Art started hearing from people in the chain of command at Hansen’s who, I’m sure, let him know that they weren’t actually trying to put him out of business, that this was standard business practice and that, yes, we can settle this out of court, let’s just draft some language to make it official.

And then this crazy thing happened where somebody at Hansen’s – Mark Hall, President of Monster Beverage – decided to respond to a letter by just.. some person who wrote in. Unsurprisingly, it was posted on Facebook. In it, Mr. Hall accuses Matt Nadeau and Rock Art of orchestrating this entire PR campaign revolving around this C&D letter. It’s actually a pretty brilliant accusation, but it’s a tough pill to swallow. In fact, as far as I’m concerned, this letter of accusation of Machiavellian scheming is where Monster does far more damage to itself than anything else. (Here Matt’s passionate response, as well.) But he makes a really good point:

When we reach an accommodation with RA which we will no doubt do in the next day or so how will we undo the damage to our brand and reputation? Who will have really won? Will you be as passionate about telling our side? My guess is no one will hear about the resolution because it is not nearly as sexy a story.

Nobody. Why? Because everyone wants to see the little guy win. And he has. Beer and confetti all around! From everything I’ve seen so far, he has retained the right to brew Vermonster so long as he promises to not get into the energy drink market. But was that ever the question? Like… at all?

As Andy Crouch brought up this morning, what has he actually won? Was his ability to continue to manufacture Vermonster ever really in doubt? Or has he actually won an enormous — and FREE — PR campaign on the backs of the quick fingers of fad-driven social media fans? How much more Vermonster will Rock Art sell this year? I’m willing to bet a lot.

I don’t think that’s bad, but it sure is interesting!

As a kind of postscript, I have a hard time feeling bad for Hansen’s in all of this. They hired a firm with a bad reputation to do unpleasant work poorly. Something like this was going to rear up and bite them in the ass eventually.

I also can’t help feel that the real lesson out of all of this is going to be obscured by the frantic re-Tweeting of “OMGZ WE WON!!11!”: Trademark law needs a good overhaul and companies like this one (CE, not Hansen’s) need to have their business practices reviewed on a regular basis for bullying – because this is exactly what this action was. The backbone of this country’s economy is small businesses, and these kinds of actions threaten small businesses.

Vermonster was never a threat to Monster Energy drink, and while it could have been (and maybe should have been) a quiet conversation between lawyers, the real story is that the C&D letter should never have been sent in the first place.


Responses to this post » (9 Total)

  1. ingrate says:

    That was an excellent bit of commentary, Erik. Thank you. The bit I like the most (that resonated with me the most) was this:

    They hired a firm with a bad reputation to do unpleasant work poorly


  2. PJ says:


    Great recap. As a fast fingered craft beer tweeter, I laughed a blushed a few times here. It is great / sad that in the end, legally, nothing has changed. The net value of actual law here appears to be nothing. Monster’s brand is slightly tarnished, but as my roommate brought up last night, it’s tarnished in the eyes of those who never drink Monster anyway.

    Die-hard Monster drinkers who have the big stickers on their cars and swear by the drink mixed with various clear liquors haven’t heard of this “battle”. Craft beer drinkers didn’t drink Monster to start with. So really, nothing happened.

    RA will definitely have an increase in sales, for a little bit. If everyone who tweeted #isupportrockart were to actually buy a case, RA would be brewing 24/7 for the next few months.

    I agree that Hansen’s probably had no idea this was even happening until they got a few hundred emails on day. They were probably like “omg wtf is rock art?”. I think their mistake was treating a social media speed bump like a normal speed bump. In Mark’s letter on Facebook, he states that no one has heard their side, this is what happens when you only hear one side, who will fight our side, etc. Well, they should have made an actual statement, or had Matt make a statement once negotiations were in progress. Responding to one of a thousand emails was just not smart.

    Anyway, I’m glad it’s resolved. I hope that in the future, a) this doesn’t happen, b) social media enthusiasts take a minute to get, if not the whole story, at least a better understanding of the story (c&d vs. suit), and c) that trademark law changes to make more sense and benefit everyone.

    Great writeup.


  3. Katie says:

    Several points I want to reference:

    “I have a hard time believing that a 2 – 3 week boycott by Vermont distributors and random craft beer drinkers around the country did anything to hurt Hansen’s bottom line.”

    I agree….that’s why I asked my readers to do something other than boycott. It’s a natural knee-jerk reaction, but it seldom has any impact unless it’s long term. Making your anger heard, however, does have a very obvious effect.

    “Was his ability to continue to manufacture Vermonster ever really in doubt?”

    Yes, I would think it might have been because had this gone to court, and had Hansen stood firm on their insistence that there was an infringement, court fees could have eventually skyrocketed to the point that Rock Art would have had to either cease and desist, or close its doors.

    Just because these types of C&D letters are standard MO for several large corporations holding trademarks doesn’t mean they should CONTINUE to be standard MO. Perhaps social media will teach them to tread a little more lightly, though I know how difficult that can be for a 2-ton monster…..lowercase, lest they come after me, too.

  4. erik says:

    Yes, I would think it might have been because had this gone to court, and had Hansen stood firm on their insistence that there was an infringement, court fees could have eventually skyrocketed to the point that Rock Art would have had to either cease and desist, or close its doors.

    Right, but that’s on the supposition that it went to court. I mean, it should have never gotten to court – and it didn’t – mainly because it is fairly clear to prove that it’s not a trademark infringement. They’re trademarks for entirely different products.

    So, basically, there was a lot of action on an “if.” No doubt! If that “if” happened it could have been bad, but it seems to me like that would be the time for serious public discourse.

    Not that I’m sad that it came to public discourse early, I do think that Hansen’s was in the wrong on this, entirely. And I don’t think that Matt at Rock Art cooked up some crazy scheme to profit off of all of this. But you have to admit that the way it all played out is a little insane.

    And your final point echos mine, so we’re all good. 🙂

  5. erik says:

    @PJ – as to one of your last bits here:

    b) social media enthusiasts take a minute to get, if not the whole story, at least a better understanding of the story (c&d vs. suit),

    I kinda hope they don’t. I actually think it’s one of the allures of social media: it’s immediacy and, frankly, it’s charming naivety.

    On the other hand, it’s the main reason I wish traditional media would take a minute before reporting on it.

    • PJ says:

      True. That video from the station in VT is sort of… sad. I wrote two posts on the issue. The first was totally reactionary, and didn’t really say anything. Then I had time to think and research, and actually had something to say that wasn’t being said (all the trademark quotes).

      But it was sort of funny to see everyone say “drop the lawsuit, drop the lawsuit” when there wasn’t one.

Post a Comment

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

Comment Meta:
RSS Feed for comments

 Last 50 Posts
Change Theme...
  • Users » 200375
  • Posts/Pages » 204
  • Comments » 3,203
Change Theme...
  • VoidVoid « Default
  • LifeLife
  • EarthEarth
  • WindWind
  • WaterWater
  • FireFire
  • LightLight


    No Child Pages.


    No Child Pages.


    No Child Pages.