IN THE UNITED STATES DISTRICT COURT

DISTRICT OF VERMONT

Hansen Natural Corporation )

550 Monica Circle Suite 201 Corona )
California 92880 USA, Plaintiff )
)
v. )
)
Rock Art Brewery )
254 Wilkins Street Morrisville )
Vermont 05661, USA, Defendant )

COMPLAINT

Hansen Natural Corporation (hereinafter “Plaintiff”), for its Complaint herein against
Rock Art Brewery (hereinafter “Defendant”), states as follows:

1. Plaintiff is a corporation organized and existing under the laws of Delaware, with its
headquarters at 550 Monica Circle Suite 201 Corona, California 92880, USA.

2. Defendant is, upon information and belief, a foreign limited liability company, with a
principal place of business at 254 Wilkins Street Morrisville VERMONT 05661, USA.

COUNT I
INFRINGEMENT OF REGISTERED TRADEMARK
UNDER SECTION 32 OF THE LANHAM ACT

3. This is an action for infringement of a federally registered trademark pursuant to 15

U.S.C. § 1114. This Court has jurisdiction under 15 U.S.C. § 1121, 15 U.S.C. §
1114, , 28 U.S.C. §§ 1331 and 1338 (a). This Court also has jurisdiction of the action
under 28 U.S.C. § 1332, as there is diversity of citizenship between the parties, and
the amount in controversy exceeds the sum of Seventy Five Thousand Dollars
($75,000.00), exclusive of interest and costs. Venue is proper in this District under
28 U.S.C. § 1391.

4. The Plaintiff is presently the largest developer and marketer of energy drinks in the
United States, claiming approximately 29% of the market.

5. Plaintiff is in the business of manufacturing and selling, inter alia, an energy drink
under a distinctive trademark comprising the words ‘MONSTER ENERGY’ and a
stylised device of the letter ‘M’.

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6. Plaintiff, through its affiliate, namely, Hansen Beverage Corporation applied to the
USPTO for registration of its MONSTER ENERGY trademark and has been issued
registration certificates for ‘Monster Energy’ in class 5 (no. 3044315), ‘Monster
Energy’ in class 32 (no. 3057061), ‘M Monster Energy’ in class 5 (no. 3044314), ‘M
Monster Energy’ in class 32 (no. 3134842) and ‘Monster Energy with M device’ in
class 32 (3134841).

7. The Plaintiff intends to extend its business activities to the manufacture and sale of
clothes, accessories, stickers, sports bags and helmets, under its MONSTER
ENERGY trademark. To this end, the Plaintiff has filed seventeen (17) applications
at the USPTO for registration of the said mark with regard to the foregoing goods.
The said applications are currently pending.

8. The Plaintiff has been selling its MONSTER ENERGY drink through retail shops,
supermarkets and at locations such as gyms and swimming pools, throughout the
United States, since March 27, 2002.

9. The mark MONSTER ENERGY has been used by the Plaintiff in its advertising
campaigns, promotional materials, sales invoices, and other ways customary in the
trade to identify the Plaintiff as the source of goods.

10. Over the years, the Plaintiff has spent a considerable amount of money advertising
and promoting the mark in an effort to establish the mark MONSTER ENERGY in
the minds of customers as a source of high quality energy drinks. The plaintiff’s
marketing budget for the year 1992 was $30 million.

11. In the year 2008, the Plaintiff earned revenues of $ 1.03 billion, while in the first
quarter of 2009, revenues stood at $279 million. The primary cause of increase in the
plaintiff’s sale was a high demand for its energy drink sold under the MONSTER
ENERGY brand. During this time, the total number of MONSTER ENERGY drink
cases sold by the plaintiff, grew by 5.4%. The plaintiff also exports this energy drink
to Germany, Mexico, Australia and New Zealand.

12. As set out above, the Plaintiff has continuously and widely used the mark MONSTER
ENERGY in connection with the sale of its energy drink for over eight years. During
this period, the reputation of the Plaintiff and its trademark have continuously grown
throughout the beverage market and are now well known throughout the United
States as indicating the Plaintiff as the source of the goods.

13. On information and belief, in the year 2007, the Defendant started selling a beer in
Vermont, Massachusetts, Pennsylvania, New Jersey, Connecticut and Arizona, under
the trademark ‘VERMONSTER’. The defendant’s product falls within international
class 32, i.e., the same class as Plaintiff’s trademark registration numbers 3057061,
3134842 and 3134841.

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14. As the Defendant’s mark contains a dominant part of the Plaintiff’s mark, i.e.,
‘Monster’, there is a strong likelihood of confusion between the products in the
market. Further, as the Plaintiff’s energy drink and Defendant’s beer are both
inexpensive products that fall within the category of beverages, the degree of
sophistication exercised by the buyer at the time of purchase is low and therefore, the
possibility of consumer confusion high.

15. Defendant has been using the mark THE VERMONSTER to identify its beer without
written consent, oral consent or a license from the Plaintiff.

16. In October 2009, the Plaintiff, through its counsel, sent a cease and desist letter to the
Defendant, calling upon the latter to stop using the mark VERMONSTER. However,
to date, the Defendant continues to use the mark VERMONSTER.

17. Defendant, by using a mark that is confusingly similar to the Plaintiff’s registered
trademark, without consent of the Plaintiff, in connection with the sale, offering for
sale, distribution, or advertising of its beer, which use is likely to cause confusion, or
to cause mistake, or to deceive, is liable in the instant action.

18. Defendant, by continuing to use the VERMONSTER trademark even after being
notified of the Plaintiff’s rights in the mark MONSTER ENERGY, is liable to the
Plaintiff for profits or damages.

COUNT II
FALSE DESIGNATION OF ORIGIN UNDER
SECTION 43(A) OF THE LANHAM ACT

19. This is an action for false designation of origin and unfair competition pursuant to 15
U.S.C. § 1125 (a). This cause of action is separate and independent of the cause of
action set forth in Count I, but is between the same parties and is based on the same
operative facts as set forth in Count I. This Court has jurisdiction under 15 U.S.C. §
1121, 15 U.S.C. § 1125 (a) and 28 U.S.C. §§ 1331 and 1338 (a). This Court also has
jurisdiction of the action under 28 U.S.C. § 1332, as there is diversity of citizenship
between the parties, and the amount in controversy exceeds the sum of Seventy Five
Thousand Dollars ($75,000.00) (RELIEF), exclusive of interest and costs. Venue is
proper in this District under 28 U.S.C. § 1391.

20. Plaintiff realleges and incorporates herein the allegations of Paragraphs 4 to 16,
inclusive.

21. Plaintiff, as set forth above, owns and uses the MONSTER ENERGY mark in various
forms and styles in connection with sale of its energy drink and various other
products.

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22. Defendant's use of the mark VERMONSTER is likely to cause confusion, mistake, or
to deceive as to the affiliation, connection, or association of Defendant with Plaintiff,
or as to the origin, sponsorship, or approval of the Defendant's goods by the Plaintiff.

23. Defendant's use of a mark that is confusingly similar to, and a colourable imitation
of, the Plaintiff's registered trademarks, and applied to the same category of goods as
the Plaintiff’s, i.e., beverages, constitutes a false designation of origin which is likely
to deceive and has deceived customers and prospective customers throughout the
United States into believing that Defendant's beer is in some way connected with the
Plaintiff’s energy drink, and as a consequence, is likely to divert and has diverted
customers away from Plaintiff.

24. Defendant's false designation of origin and acts of unfair competition have caused and
are continuing to cause irreparable injury to the Plaintiff’s reputation, which the
Plaintiff has established over several years. Unless the use of the mark
VERMONSTER by the Defendant is enjoined, Defendant will continue these acts to
the detriment of the Plaintiff.

COUNT III
DILUTION OF A FAMOUS TRADEMARK UNDER
SECTION 43 (C) OF THE LANHAM ACT

25. This is an action for dilution by blurring of the Plaintiff’s trademark MONSTER
ENERGY, by the Defendant’s use of its mark VERMONSTER under the Federal
Trademark Dilution Act of 1995, 15 U.S.C. § 1125(c). This cause of action is
separate and independent of the cause of action set forth in Counts I and II above, but
is between the same parties and is based on the same operative facts as set forth in
Counts I and II. This Court has jurisdiction under 15 U.S.C. § 1125(c), and 28 U.S.C.
§§ 1331 and 1338 (a). This Court also has jurisdiction of the action under 28 U.S.C.
§ 1332, as there is diversity of citizenship between the parties, and the amount in
controversy exceeds the sum of Seventy Five Thousand Dollars ($75,000.00),
exclusive of interest and costs. Venue is proper in this District under 28 U.S.C. §
1391.

26. Plaintiff realleges and incorporates herein the allegations of Paragraphs 4 to 16,
inclusive.

27. Plaintiff is the exclusive owner of the common law trademark rights in the mark
MONSTER ENERGY. No license or authorization has been granted to the defendant
to use the said marks, or variations thereon.

28. The Plaintiff’s mark is recognised throughout the United State and readily associated
with the Plaintiff’s goods, and therefore entitled to be recognized as famous under
the Federal Trademark Dilution Act of 1995, 15 U.S.C. § 1125(c).

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29. The Defendant’s unauthorized use of the Plaintiff’s famous marks, or variation
thereof, in the sale and advertising of its beer will dilute the distinctive quality of the
Plaintiff’s mark and the goodwill associated with it in violation of 15 U.S.C. §
1125(c). By reason of the foregoing, the defendant has committed unfair
competition, all to plaintiff's injury, which injury will continue unless defendants are
enjoined from further committing its wrongful acts.

30. If such use on the part of defendants continues, Plaintiff will suffer irreparable harm
of a continuing nature for which there is no plain, speedy or adequate remedy at law.

31. The defendants' unauthorized use of these marks was with the deliberate intent to
trade on the owner's reputation.

COUNT IV
COMMON LAW TRADEMARK INFRINGEMENT

32. This is an action for trademark infringement and arises under the common law. This
cause of action is separate and independent of the causes of action set forth in Counts
I, II and III, but is between the same parties and is based on the same operative facts
as set forth in Count I. This Court has jurisdiction over this action under 28 U.S.C. §
1332, as there is diversity of citizenship between the parties, and the amount in
controversy exceeds the sum of Seventy Five Thousand Dollars ($75,000.00),
exclusive of interests and costs. The Court also has pendent jurisdiction over this
Count II pursuant to 28 U.S.C. § 1338 (b). Venue is proper in this District under 28
U.S.C. § 1391.

33. Plaintiff realleges and incorporates herein the allegations of Paragraphs 4 to 16,
inclusive.

34. Plaintiff, as set forth hereinabove, owns and uses the MONSTER ENERGY mark in
various forms and styles in connection with sale and advertising of its energy drink.

35. Plaintiff owns and enjoys common law rights in Vermont and throughout the United
States in and to the mark MONSTER ENERGY in connection with sale of its energy
drink. The Plaintiff’s said common law rights are superior to rights which the
Defendant may claim in and to the mark VERMONSTER in any form, style or
variation thereof with respect to the sale and advertising of beers.

36. The use of the mark VERMONSTER in connection with sale and advertising of beer
by Defendant is likely to cause and has caused confusion as to the source of the
Defendant’s goods, in that purchasers will be likely to associate or have associated
such goods with and as originating with the Defendant, all to the detriment of the
Plaintiff.

COUNT V

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 VIOLATION OF VERMONT UNLAWFUL TRADE PRACTICES LAW

37. This is an action for unlawful methods of competition and deceptive or misleading
acts and practices in the conduct of Defendant's trade in violation of the Vermont
Commerce and Trade Statute 9 V.S.A. § 2453.

38. This cause of action is separate and independent of the causes of action set forth in
Counts I, II, III and IV above, but is between the same parties and is based on the
same operative facts as set forth in Count I. Jurisdiction of this Court is present
pursuant to 28 U.S.C. § 1338 (b). Venue is proper in this District under 28 U.S.C. §
1391.

39. Plaintiff realleges and incorporates herein the allegations of paragraphs 4 to 16,
inclusive.

40. Defendant's use of the mark VERMONSTER in connection with the sale and
advertising of beer has misled, deceived and misrepresented to consumers that its
goods emanate from the same source, and bear the sponsorship and approval of, the
Plaintiff.

41. By committing the acts herein alleged, Defendant is liable for unlawful trade practices
in the conduct of its trade within Vermont in violation of the Vermont Commerce
and Trade Statute, 9 V.S.A. § 2453 , causing Plaintiff to incur damages and loss of
profits. Defendant's unlawful conduct will continue to damage Plaintiff unless
enjoined by this Court.

DAMAGES AS TO COUNTS I, II, III, IV & V

42. Defendant has made profits from its acts of infringement and unfair competition and
the Plaintiff has suffered damages. The extent of profits and damages are unknown to
the Plaintiff at this time.

RELIEF

WHEREFORE, the Plaintiff demands judgment as follows:

43. That Defendant and its agents, servants, employees, attorneys and all in active concert
and/or participation with it be restrained, through permanent injunctive relief, from
using the mark MONSTER ENERGY or any part or colourable imitation thereof in
connection with sale of its beer or any other product.

44. That Defendant and its agents, servants, employees, attorneys and all in active concert
and/or participation with it be restrained, through permanent injunctive relief, from
engaging in unfair competition or false designation of origin with the Plaintiff. 15
U.S.C. § 1116.

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45. That Defendant and its agents, servants, employees, attorneys and all in active concert
and/or participation with it be directed to account and pay over to the Plaintiff all
gains, profits and advantages by them and others acting with them from the sale of its
beer under the mark VERMONSTER or any other colorable imitation thereof.

46. That Defendant and its agents, servants, employees, attorneys and all in active concert
and/or participation with them be directed to account for its profits and pay to the
Plaintiff all damages suffered by the Plaintiff, including interest, as a result of
Defendant's use of the mark VERMONSTER and as a result of false designation of
origin and unfair competition with the Plaintiff. 15 U.S.C. § 1117.

47. That all damages in relation to false designation of origin are trebled. 15 U.S.C. §
1117.

48. That Defendant and all others acting in concert with it be directed to pay to the
Plaintiff all costs and attorneys fees connected with this action. 15 U.S.C. § 1117.

49. That Defendant and all others acting in concert with it be directed to deliver up for
destruction all labels, advertisements and other materials and things bearing the mark
VERMONSTER or any mark that is confusingly similar to the Plaintiff’s trademark
MONSTER ENERGY. 15 U.S.C. § 1118.

50. That the Plaintiff be given such other and further relief as the Court may deem just
and proper.

Dated: February 4, 2010

-Sd-

Chandrashekar & Attorneys

Plaintiff's Attorney
2, White Street,
Concord NH 03301