Veteran Techdirt readers will have been so tempered by stories about Monster Energy playing the trademark bully at this point that the mere mention of the company should cause them to roll their eyes. Still, the history of what we’ve covered in the Monster’s attempt to win the trademark-protectionist championship are still constructive in one very important way: Monster Energy regularly loses these disputes. That in itself shouldn’t be terribly surprising; the company’s decisions on just how often to enforce the trademark rights it has are often so absurd that it would be a shock if it put together any sort of real winning streak. But what is surprising is when victims of Monster’s bullying choose to actually concede to the bullying, given that losing track record.
But it happens, even when the victim is a large enough entity that it could fight if it wanted to. A recent example of this is how Ubisoft changed the name of an upcoming video game after Monster Energy opposed its trademark application for it.
Ubisoft’s Gods & Monsters recently underwent some rebranding, switching its name to the demonstrably-worse Immortals Fenyx Rising a few weeks ago. It has gone over like a lead balloon. In fact, it had our team wondering if we should just refuse the new name and stick with the old one!
As uncovered by TechRaptor, Monster Energy opposed Ubisoft’s trademark for the title “Gods & Monsters.” The logic goes that Monster has enough of a presence within video games that Ubisoft’s use could reasonably cause confusion among consumers.
Logic which runs counter to the purpose of trademark law, to how trademark law actually works in terms of market designations, as well as to good business and marketing. Taking those in reverse order: the name change is almost objectively terrible. I have yet to find any publication that thinks the title switch was even a wash for Ubisoft, never mind beneficial. The universal opinion seems to be, and I agree with it, that Ubisoft to one extent or another participated in a bit of self-harm by this rebranding.
Now, on to the actual legal question. The consensus here too seems to be that Ubisoft could have easily have won this battle on the merits, but didn’t want to simply to avoid any delay stemming from a legal battle.
Playing armchair attorney, this seems like something Ubisoft probably could’ve won, no? My guess is that it has less to do with whether or not Ubisoft cared to spend the money on this legal battle, and more to do with just getting the game out on shelves. Immortals has been delayed already, and its sales factor into Ubisoft’s fiscal year that ends in March 2021. Fighting a protracted trademark infringement case would further delay the game. Going ahead with the name Gods & Monsters would result in an injunction. Ubisoft may be in the right, but it doesn’t have the time to prove it.
Which is all probably true, but only if Ubisoft couldn’t have gotten a declaratory judgement when Monster Energy first opposed the trademark application. Because it is quite clear that there is no infringement here. Whatever participation Monster Energy has in the video game space, most of which is mere sponsorship and advertising, it still isn’t a maker of video games. Ubisoft should have needed merely to point that out to get its use declared legit. Couple that with the broader question as to whether literally anyone would make the association between a video game called Gods & Monsters and an energy drink company and I would guess getting a court to side with it would have been fairly easy for Ubisoft.
But Ubisoft decided against that route and bowed to Monster Energy’s bullying. Which is how we get Immortals Fenyx Rising instead of Gods & Monsters. An objectively worse name. For no reason, other than trademark bullying.