NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 15 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONSTER ENERGY COMPANY, a No. 24-6521 Delaware Corporation, D.C. No. 3:22-cv-00590-LL-DDL Plaintiff - Appellant,

v. MEMORANDUM*

JIANGSU SITOUGUAI INDUSTRY CO.,

LTD., a Chinese Corporation;

CHANGZHOU HAIGE MICROFIBER

TEXTILE CO., LTD., a Chinese Corporation,

Defendants - Appellees.

Appeal from the United States District Court for the Southern District of California Linda Lopez, District Judge, Presiding

Argued and Submitted October 6, 2025 Pasadena, California

Before: GILMAN, GOULD, and KOH, Circuit Judges.**

Plaintiff-Appellant Monster Energy Company (“Monster Energy”) is a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the Court of Appeals, Sixth Circuit, sitting by designation. leader in the energy drink market. Monster Energy also produces branded

merchandise (such as towels and backpacks) bearing Monster Energy’s logo and

signature green and black trade dress. Monster Energy has trademark registrations

for both its beverage products and its non-beverage products. Defendants-

Appellees Jiangsu Sitouguai Industry Co. (“4Monster”) and Changzhou Haige

Microfiber Textile Co. (“Haige”) (collectively, “Defendants”) produce camping

equipment (such as backpacks and towels) under the name “4Monster.”

Monster Energy sued Defendants for trademark infringement, trade dress

infringement, and unfair competition. Specifically, Monster Energy alleged that

Defendants’ use of the “4Monster” mark was likely to cause confusion among

consumers as to whether Monster Energy produces Defendants’ goods. The district

court granted summary judgment to Defendants. Monster Energy timely appealed,

and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district

court’s order de novo, and we consider the record in the light most favorable to

Monster Energy. See Ironhawk Techs., Inc. v. Dropbox, Inc., 2 F.4th 1150, 1159

(9th Cir. 2021). We reverse and remand for further proceedings in accordance with

this disposition.

“The test for likelihood of confusion is whether a ‘reasonably prudent

consumer’ in the marketplace is likely to be confused as to the origin of the good

or service bearing one of the marks.” Dreamwerks Prod. Grp., Inc. v. SKG Studio,

2 24-6521 142 F.3d 1127, 1129 (9th Cir. 1998). The analysis is guided by eight factors:

(1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product lines.

Lodestar Anstalt v. Bacardi & Co. Ltd., 31 F.4th 1228, 1252 (9th Cir. 2022)

(quoting Ironhawk Techs., 2 F.4th at 1160). “These factors are neither exhaustive

nor dispositive; it is the totality of facts in a given case that is dispositive.” Id. at

1252 (quoting Ironhawk Techs., 2 F.4th at 1160). “Due to the fact-intensive nature

of trademark infringement claims, we grant motions for summary judgment

infrequently.” Lerner & Rowe PC v. Brown Engstrand & Shely LLC, 119 F.4th

711, 718 (9th Cir. 2024). “Nevertheless, when no genuine issue of material fact

exists, we have not hesitated to affirm a grant of summary judgment.” Id.

Here, a genuine issue of material fact exists as to likelihood of confusion.1

As to the first factor, mark strength, Monster Energy’s marks are conceptually

distinctive and therefore “trigger the highest degree of trademark protection.” JL

Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1107 (9th Cir. 2016)

(internal quotation marks and citation omitted). Monster Energy’s marks are also

commercially strong both as to beverage products and non-beverage products.

1 Each of Monster Energy’s claims rises or falls on whether a likelihood of confusion exists. See Dreamwerks, 142 F.3d at 1129 n.2 (treating common law and Lanham Act claims as coextensive).

3 24-6521 “Commercial strength is based on actual marketplace recognition.” Id. (internal

quotation marks and citation omitted). Viewing the evidence in the light most

favorable to Monster Energy, a jury could find that Monster Energy’s wide

distribution of non-beverage merchandise goods has created widespread

marketplace recognition for Monster Energy’s non-beverage marks.

For the second factor, the relatedness of goods, a jury could find that the

parties’ products are “similar in use and function,” “complementary,” or intended

for the “same class” of consumers. Ironhawk Techs., 2 F.4th at 1163. Monster

Energy’s non-beverage goods include towels and backpacks that are “similar in use

and function” to Defendants’ towel and backpack products. Id. Likewise, a

reasonable juror could conclude that the end consumers for both parties’ goods are

the general buying public because Monster Energy licenses its marks to retailers.

Finally, as to Monster Energy’s beverage goods, a reasonable juror could find that

energy drinks are complementary to 4Monster’s camping-related textile goods

because Monster Energy markets its beverage products as adjacent to extreme

sport and outdoor adventure activities. Thus, the relatedness of goods factor weighs

in Monster Energy’s favor.

A reasonable juror could also find that the third factor, the similarity of the

marks, favors Monster Energy. Both marks prominently feature the word

“Monster.” See Rearden LLC v. Rearden Com., Inc., 683 F.3d 1190, 1211-12 (9th

4 24-6521 Cir. 2012) (finding that common use of the name “Rearden” made two marks more

than “somewhat” similar). And 4Monster’s products commonly utilize the exact

same shade of green as Monster Energy’s signature trade dress. Thus, although the

parties’ marks differ in some respects, a reasonable juror could find that the marks

are confusingly similar. See Ironhawk Techs., 2 F.4th at 1164 (explaining that

“similarities are weighed more heavily than differences” (cleaned up)).

Likewise, as to the fourth factor—evidence of actual confusion—Monster

Energy’s survey evidence creates a genuine dispute of material fact when the

survey evidence is viewed in the light most favorable to Monster Energy. See

Playboy Enters., Inc. v. Netscape Commc’ns Corp., 354 F.3d 1020, 1026 n.28 (9th

Cir. 2004). “Defendants may have valid criticism of [an expert’s] methods and

conclusions, and their critique may justify reducing the weight eventually afforded

[the] expert report.” Id. at 1027. But a district court’s “weighing” of “admissible

evidence at [summary judgment] is improper.” Id. Defendants’ arguments are best

directed to a jury. See id.

The sixth factor, the type of goods and the degree of care likely to be

exercised by the purchaser, also weighs in Monster Energy’s favor. The low-cost

goods at issue make confusion more likely because customers are unlikely to

exercise a high degree of care. See Brookfield Commc’ns, Inc. v. W. Coast Ent.

Corp., 174 F.3d 1036, 1060 (9th Cir. 1999) (explaining that purchasers of

5 24-6521 inexpensive goods “are likely to exercise less care, thus making confusion more

likely”).

As to the fifth factor, the marketing channels used by the parties somewhat

overlap, but not in a significant manner. See Pom Wonderful LLC v. Hubbard, 775

F.3d 1118, 1130 (9th Cir. 2014) (explaining that “a channel of trade is not limited

to identical stores or agents”). For the seventh factor, Monster Energy has not

presented evidence of 4Monster’s intent in selecting the 4Monster mark. See

GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1208 (9th Cir. 2000)

(explaining that this factor is of “minimal importance”). And for the eighth factor,

although there is no evidence of 4Monster’s expansion into Monster Energy’s core

energy drink business, the parties offer similar towel and backpack products, and

the extent of the parties’ competition in such goods is unclear. See Brookfield, 174

F.3d at 1060 (explaining that this factor carries less weight when parties offer

competing goods).

Considering the above factors collectively, a genuine dispute exists as to

“whether the consuming public is likely somehow to associate [4Monster’s]

products with [Monster Energy].” Brookfield, 174 F.3d at 1056. Because a

reasonable juror could find a likelihood of confusion, summary judgment in favor

of 4Monster was inappropriate.

REVERSED and REMANDED.

6 24-6521