The following summary about this "cat fight" was kindly prepared by Vlotina Liakatou, Trade Mark associate at MARQUES member Baker & McKenzie.

In Cases T‑567/15 and T-429/15 (Monster Energy Company v EUIPO & Mad Catz Interactive, Inc.), handed down on 14 July 2016, the General Court ("GC") found no likelihood of confusion between the following parties' marks:

In 2012, Mad Catz Interactive, Inc. filed EUTM applications for the figurative marks shown above for "clothing footwear and headgear". Monster Energy Company opposed both applications on the basis of its earlier registrations (also shown above) covering inter alia goods in the same Class.

The Opposition Division refused the oppositions and the Board of Appeal ("BoA") upheld its decisions. Monster Energy filed further appeals, but they were also dismissed by the General Court.

In Case T-567/15, where the EUTM Application No. 011390853 was opposed, Monster Energy claimed that the BoA had wrongly assessed the similarities between the mark applied for and its earlier mark No. 6433817, which are figurative and not composite marks (the opposition was eventually restricted to this earlier mark only). It also argued that the BoA wrongly assessed the overall impression created by these marks by stating that the mark applied for might be perceived by the relevant public as scratches, whereas the earlier mark might resemble claws. Lastly, Monster Energy criticised the BoA for finding that there was no likelihood of confusion and for failing to take into account the distinctiveness acquired by the earlier mark through its extensive use for energy drinks and clothing for extreme sports.

The GC did not concur with Monster Energy's allegations and found no likelihood of confusion in this case. After establishing that Class 25 goods were everyday goods intended for the EU average consumer and that the goods covered by the marks were either identical or similar, it went on to compare the marks at issue.

The Court agreed with the BoA's assessment of a low degree of visual similarity between the marks: although the marks were visually similar in so far as they both depicted a number of stylised lines, they differed in other respects such as the shape, colour, number and position of these lines. Contrary to what was suggested by Monster Energy, i.e. that the only perception of the marks at issue would be scratches and claws, it was held that "the mark applied for depicts a black square on which four diagonal parallel white lines are placed which might be perceived by the public as "scratches", white brush strokes or a purely abstract device, whereas the earlier mark shows three vertical parallel black shaky lines of different lengths whose upper part is broader and which, from the perspective of the relevant public, might resemble three "fingers" or "claws" or a very abstract depiction to which no specific and clear meaning can be attributed".

The fact that the perception of the earlier mark as "scratches" was not the most obvious and that the relevant public could perceive the marks at issue as abstract devices without associating them with any meaning, made them conceptually dissimilar. On this basis, Monster Energy's argument that there was at least a degree of conceptual similarity between the marks because they were liable to convey "the message of something aggressive and that something is being ripped open" could not be accepted. Regarding phonetic similarity, no phonetic comparison was possible because the marks were purely figurative.

Regarding the enhanced distinctiveness claimed by Monster Energy, the GC held that the BoA was right to find that Monster Energy's mark did not enjoy enhanced distinctiveness, since the use of the earlier mark on clothing and headgear was essentially for the purposes of sponsorship or promotion of Monster Energy's non-alcoholic beverages and energy drinks. The fact that its mark enjoyed a reputation for drinks had no relevance in relation to the reputation claim because Monster Energy had claimed reputation in relation to Class 25 goods only. 

Given the low level of visual similarity between the marks, the fact that the relevant public could perceive the marks at issue as abstract devices without associating them with any meaning (and not only as scratches) and the normal (and not enhanced) distinctive character of the earlier mark, there was no risk of a likelihood of confusion.

In Case T-429/15 where the EUTM Application No. 011390846 was opposed, the GC also found no likelihood of confusion on the basis of similar reasoning. In this case, the marks were even less visually and phonetically similar given the additional elements "MAD CATZ" included in the mark applied for.