1645703 1

PRESS RELEASE

On September 10th, 2014, Victory Energy, LLC (“Victory”), a Montana Limited

Liability Company, received a demand letter from Monster Energy Company

(“Monster”). In the letter, Monster claimed that some of Victory’s the product packaging

of certain energy drinks marketed by Victory was infringing Monster’s trademark rights.

Monster demanded that Victory cease and desist the sale and distribution of these

products.

Victory categorically denies the allegations in Monster’s demand letter and is confident

its product packaging is in accord with all applicable laws. Although many companies

buckle under this type of pressure from a much larger corporate organization, Victory

decided to place the matter before the Courts for a legal decision. Accordingly, Victory

filed what is called a “declaratory judgment action” in the United States District Court,

Missoula Division, on September 15, 2014. The Complaint filed by Victory seeks a

declaration from the Court that it does not violate any federal, state or common law

trademark rights of Monster. Along with this press release, we are providing a copy of

the Complaint and Jury Demand, along with all the attachments thereto.

Any further inquiries should be directed to our legal counsel, Robert C. Lukes, at

Garlington, Lohn & Robinson, PLLP.

Robert C. LukesPeter J. ArantGARLINGTON, LOHN & ROBINSON, PLLP350 Ryman Street. P. O. Box 7909Missoula, MT 59807 -7909Telephone (a06) 523-2500Telefax (406) 523-2595rclukes@garlington. compjar ant@garl in gto n . c om

Attorneys for Plaintiff, Victory Energy, LLC

VICTORY ENERGY,LLC,

Plaintiff,

v.

MONSTER ENERGY COMPANY,

IN T}IE UNITED STATES DISTRICT COURTFOR TI{E DISTRICT OF MONTANA

MISSOULA DIVISION

Case No.

COMPLAINT FORDECLARATORY JUDGMENT

AND.IURY DEMAND

Defendant.

The Plaintiff, Victory Energy, LLC ("VE"), herebl' files its Complaint for

Declaratory Judgment and Jury Demand, stating and alleging as follows:

l. VE brings this action seeking a declaration fiom this Court pursuant

to the Declaratory Judgment Act, 28 U.S.C. $ 2201 ,that the use of its "V

VICTORY ENERGIZE" trademark and related trade dress for energy drinks does

not infringe upon the rights of Defendant, Monster Energy Company ("MEC"), in

t642202

the MONSTER ENERGY trade dress, designation or in any other MONSTER

designation in which MEC claims, or may claim, rights.

JURISDICTION AND VENUI]

2. VE is a Montana limited liability company, with its principal place of

business located in Missoula, Montana. VE is, and at all relevant times hereto has

been, in the business of developing, marketing, and selling certain products bearing

the V VICTORY ENERGIZE trademark, used in conjunction with the sale of non-

alcoholic beverages, namely, energy drinks.

3. MEC is a Delaware corporation, with its principal place of business at

1 Monster Way, Corona, California 92879. MEC does business nationwide,

including in this judicial district in Montana. MEC produces, markets, and sells

energy beverages under the designation MONSTER ENERGY, which are sold

throughout Montana, including within Missoula County.

4. The United States District Court has subject matter jurisdiction of this

actionunder l5 U.S.C. $ 1121 and28U.S.C.$$ 1331, 1338(a)-(b), attd 1367(a).

5. This Court has personal jurisdiction over MIIC, and venue is proper in

this district pursuant to 28 U.S.C. $1391(b) and (c), because the events giving rise

to the claims have a substantial effect in this district, VE has a presence in this

district and MEC conducts regular and systematic business in this district and/or

has purposefully availed itself of conducting business in this district.

1642202

FACTS RELEVANT TO ALL CLAIMS

6. VE is the owner of the V VICTORY ENERGIZE trademark ("VE

Trademark"). Since at least as early as January 1,2012, VE has marketed and sold

energy drinks under its VE Trademark.

7 . VE is the owner of a federal trademark registration issued by the

United States Patent and Trademark Office ("USPTO") for a design designation

featuring the letter V and words VICTORY ENERGIZF', at USPTO Reg. No.

4309937, with the designation depicted below:

\./lc-r(:}FEqY

("VE's Registered Mark"). A true and accurate copy of the USPTO registration

for VE's Registered Mark is attached hereto at Exhibit "A."

8. To date, VE packages its energy drinks solely in cans, in a variety of

flavors, with corresponding packaging for different flavors, as depicted below

("VE Trade Dress").

t642202

9. VE currently sells its energy drinks under the VE Trademark in every

state in the united States of America, with the exception of Maine, New

Hampshire, vermont, connecticut, Rhode Island, New york, New Jersey,

Delaware, Maryland, Alaska, and Hawaii.

10. Based on information and belief, MEC begarr using the term

MONSTER in conjunction with sales of sodas no earlier t.han April 16,2002.

I l. MEC is the owner of numerous USPTO regirstrations related to its

Monster Energy brand of drinks, including an M design and a word mark for

ru2202

MONSTER ENERGY. See, USPTO Reg. Nos .290321,1(M design) and Reg. No.

3057061 (MONSTER ENERGY).

12. MEC packages its energy drinks in a variety of flavors with

corresponding packaging, with some of these depicted br:low ("MEC Trade

Dress"):

13. In addition to registrations for its main brands, MEC is the owner of

certain trademark registrations and a very large number of trademark applications

pending before the USPTO. A search of the USPTO records for the words

"Monster Energy Company" reveals no less than277 applications and

registrations, with some "dead," but most still "live" and,active. See, USpTO

records, at Exhibit "B."

r&22o2 5

14. The price point for a 16 ounce can of VE's energy drinks are designed

for sale at $0.99 per can. Based on information and belief, MEC's l6 ounce

energy drinks are priced for everyday sale at approximately $2.00 per can.

15. Because of what is perceived as an overly aggressive stance on

protecting its trademark rights beyond their actual scope of protection, MEC, and

its predecessor, Hansen Beverage Company, have been accused of being a

"trademark bully" in the media and in law review articles. See, e.g.,Leah Chan

Grinvald, Shaming Trodemark Bullies,20ll Wis. L. Rel'. 625 (using Monster

Energy as the example of a trademark bully in the very first paragraph); Sara M.

Andrzejewski, Leave Little Guys Alone!: Protecting Small Businesses from Overly

Litigious Corporations and Trademark Infringement Sutts,19 J. Intell. Prop. L.

1 17, Fall 2011.

16. In part, MEC's conduct (via its predecessor-in-interest, Hansen

Beverage Company, which was perceived as a trademark bully led to Senator

Patrick Leahy seeking Congressional funding to study trademark bullying. See,

Ex. C: Rob Petershack, Trodemark Bullies to be Studied., WTN News, Oct. 10,

2010; see also, Trademark Technical and Conforming Amendment Act of 2012; S.

2968,111 Cong. (2d sess.2010) (Pub. L. No. lll-146).

I7 . On September 5,2A14, counsel for MEC sent a letter by certified and

electronic mail to VE's legal counsel, Eric Woodahl. In the letter, MEC claimed

1642202 6

"Victory Energy is using a trade dress that is confusingly similar to Monster's

MONSTER Trade Dress to promote and sell energy drinks, shirts, and sports

helmets, . . ." Ex. D at2. The letter from MEC's counsel further demands that VE,:

(a) cease and desist from further sale of the unauthorized products; (b)

"immediately recall and preserve for delivery to Monster any and all materials

bearing Victory Energy's above-referenced confusingly similar trade dress" (Ex. D

at 4); (c) sign a declaration completely and accurately disclosing VE's sales of all

goods bearing VE's above-referenced trade dress; and (d) pay MEC attorneys' fees

incurred in connection with this matter.

CLAIM FOR RELIEF(Declaration of Non-Infringement of the VE, Trade Dress/VE Trademarkas compared with MEC Trade Dress, Designations, No False Designation

of Origin and No Unfair Competition)

18. VE re-alleges and incorporates herein by refbrence each and every

allegation as set forth above.

19. An actual controversy has arisen and presently exists between VE and

MEC with regard to their respective rights related to VE's Trade Dress/trademark

rights and MEC's MONSTER ENERGY trade dress/trademark rights.

20. VE believes that there is no legal or factual basis for MEC's claim

that the VE Trade Dress (or the VE Trademark) has caused, or is likely to cause,

confusion with the MEC Trade Dress or any of MEC's trademarks or designations.

1642202

VE also believes that its VE Trade Dress and/or trademal'k does not infringe or

violate any rights MEC may have in the MONSTER designations or violate any

federal, state or common law, and that its use of its VE Trade Dress and trademark

in any stylization does not constitute unfair competition or violate any federal, state

or common law.

2l. VE desires a judicial determination of its rights in the VE Trade Dress

and the VE Trademark (including, but not limited to, as it is used in the VE

Trademark Registration) does not violate any federal, state or common law, as

compared with the rights of MEC in MEC's Trade Dress, including its various M

and MONSTER designations.

22. A judicial declaration is necessary and appropriate at this time under

the circumstances and to resolve fully MEC's allegations that VE's Trade Dress is

infringing MEC's Trade Dress rights and MEC's demand for VE to cease and

desist for all such sales.

REQI]EST FOR RELIEF

WHEREFORE, VE respectfully requests the Court for the following relief:

A. A declaratory judgment, pursuant to 28 U.S.C. $ 2201, establishing

that VE's use of the VE Trade Dress and VE Trademark for energy drinks does not

infringe upon MEC's Trade Dress, M or MONSTER trademark or designation, or

any other M or MONSTER designation to which MEC claims, or may claim,

1642202 8

rights.

B. For an award of costs and attorneys' fees to VE.

c. For any other relief that the court may deem just and proper.

DEMAND FOR JURY TRIAI,

VE hereby demands a trial by jury of all issues so triable.

DATED this l5th day of September,2}I4.

/s/ Robert C. LukesAttorneys for Plaintiff, \rictory Energy,LLC

t642202

EXHIBIT A

Trademark Electronic Search System (TESS)

United States Fatent and Tradernark Office

xome lsite trndex l$earct I rnq le lossary I cuide* lContacts leBusinr*ss le&i= alerts | ilews I uelp

Trademarks > Trademark Electronic Search System (TESS)

IESS was last updated on Thu Sep 11 03:21:02 EDT 2014

Page L of2

@@@E@E@E@@@@EE@@@@@EE@I Logout I Please logout when you are done to release system resources allocated for you.

f-tEl. I List At:

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6PY

\lrf,-!*(3Fr1v

Word Mark

Goods andServicesMark DrawingCodeDesign SearchCode

Serial NumberFiling Date

Current BasisOriginal FilingBasisPublished forOppositionRegistrationNumberRegistration Date

Owner

Attorney ofRecordDisclaimer

V VICTORY ENERGIZE

lC 032. US 045 046 048. G & S: Non-alcoholic beverages, namely, energy drinks. FIRST USE:20120101. FIRST USE lN COMMERCE:20120101

(3) DESTGN PLUS WORDS, LETTERS, AND/OR NUMBERS

01.15.18 - More than one drop including teardrops or rainclrops; multiple drops (rain, tear, etc.);Raindrops (more than a single drop); Teardrops (more than a single drop)01.15.25 - Coal; Dust; Light rays; Liquids, spilling; Pouring liquids; Sand; Spilling liquids85452885

October 21,2011,IA

1B

July 10,2012

4309937

March 26.2013(REGISTRANT) Victory Energy, LLC. LIMITED LIABILIT'/ COMPANY MONTANA 6681Kestrel Drive Missoula MONTANA 59808

Eric L. Woodahl

http ://tmsearch.uspto. gov/bin/gate.exe?Fdoc&state:4 805 :zh6r7 0 .2.5 9lrU20t4

Trademark Electronic Search System (TESS) Page2 ofL

NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE ''ENERGIZE" APART FROM THEMARK AS SHOWN

Description of Color is not claimed as a feature of the mark. The mark consists of "VICTORY ENERGIZE"Mark with a stylized V design.

Type ofMark TRADEMARK

Register PRINCIPAL

Live/Dead L'VElndicator

@@@@@E@E@tr@@@@M@@@E@I.HOME I SITEINDEXI SEARCH I eBUSINESS I HELP I PRIVAGYPOLIGY

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EXHIBIT B

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l*ryi i List r--_1 on L?= I to 277 Records(.s) found (This page:IAr: r_r fecord: _t I _ { oo)

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376st9 LEADED M MOHSTER ENERGY

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7 IMOI{STER GIRL

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71 111452 SEil'S SUPERI{ATURALS LIVE

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73 15552{65 JUICE MONSTER rSDR LIVE

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CAPPUCCI}IO M JAVA MOIISTER

ETTIERGY CUBA.LIMA

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181 78969357 3424766 BIPORTED FROM ilATURE ITSDR ,lLrvE

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191 744426,47 7110.25,4 RUMBA TSDR l!'ve192 78,434731 3053402 BLUE SKV rSDR LIVE

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221 7770,4753 43542|J7 D.STRESS ITSDR I LIVE

222 77703,675 3901266 I{ITROUS MOXSTER EIIERGY rSDR LIVE

223 f7673736 3E,52123 MOI{STER MIXXD LIVE

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226 f76700,61 ?672432 LO.BALL rSDR LIVE

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TI GRAVITY

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EXHIBIT C

Trademark bullies to be studied (WTN News)

GUEST COLUMN

Rob PetershackOctober 20,20tO

t|Tweet i5 t;\

Trademark bullies to bestudied

WTltl llerrys & te<hnology leadersI"iedtedln,

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Earlier this year Congress passed and President Obamasigned the Trademark Technical and ConformingAmendment Act of 2010. While most of the bill dealtwith technical aspects of trademark law, Senator Leahyof Vermont included a provision in the Act requiring theSecretary of Commerce to "study and report to"

Congress on "The extent to which small businesses may be harmedby litigation tactics attempting to enforce trademark rights beyond areasonable interpretation of the scope of the rights granted to thetrademark owner." This provision has become know as the"trademark bullies" provision.

It was included in the bill at the behest of Senator Leahy as a resultof his concerns that a Vermont brewer, Rock Art Brewery, wasbeing targeted by Hansen Beverage Company, the producer ofMonster Energy Drink, because of Rock Art Brewery's production ofVERMONSTER beer. In September 2009, Hansen Beverage Companyhad sent Rock Art Brewery a letter demanding that Rock Art ceaseand desist its use of VERMONSTER as a trademark for beer claimingit infringed on Hansen's MONSTER ENERGY trademarks.

Hansen is a multi-million dollar beverage corporation with areputation for claiming excessively expansive trademark rights.Rock Art Brewery is a small brewing company owned by a husband-and-wife team based in Vermont. Instead of yielding to the bigcorporation, which is what most small business are forced to do,Rock Art Brewery fought back. By using the Internet, it was able togenerate a massive negative publicity storm against Hansen, whichresulted in a settlement agreement that allowed Rock Art tocontinue its use of VERMONSTER with its beer.

The study that was birthed by the Rock Art controversy is nowbeginning. The United States Patent and Trademark Office (USPTO)

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is looking for comments from small business trademark owners andothers on "the extent to which small business may be harmed bylitigation tactics by corporations attempting to enforce trademarkrights beyond a reasonable interpretation of the scope of the rightsgranted to the trademark owner," In other words, the USPTO islooking for the impact of trademark "bullies" on small business.

Specifically, the USPTO is asking that commenters address thefollowing points:

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1. Are you a trademark owner and if ,o *nu, ,; ;;" n";"rat sizeand nature of your business and the number of trademarkapplications or registrations your business has (Note: the USPTOwill consider your comments even if you don't identify yourself inany particular matter).

2. Whether in the last five years your business has been the targetof litigation tactics attempting to enforce trademark rights beyond areasonable interpretation of the scope of the rights granted to thetrademark owner (i.e., whether you have been the subject oftrademark bullying).

3. A description of any situation where your small business hasreceived a cease-and-desist letter. This can include anecdotalinformation concerning the outcome such as whether the letterresulted in your small business ceasing its use of one or moremarks or whether the sender of the cease-and-desist letterwithdrew or abandoned its demands against your small business.

4. A description of any trademark litigation in state or federal courtin which your small business has been involved. This can includeanecdotal information concerning the outcome such as whether thelawsuit settled on the basis of your business agreeing to cease itsuse of one or more marks or settled on the basis of the largerbusiness withdrawing or abandoning its trademark-relatedallegations, or whether the lawsuit resulted in a court judgment andthe nature of such judgment.

5. A description of situations in which your business has beeninvolved in opposition/cancellation proceedings instituted at theUSPTO. Again, provide anecdotal information concerning theoutcome such as whether your business agreed to abandon itsapplication for one or more marks or whether the proceedingssettled on the basis of the larger business withdrawing orabandoning its notice of opposition or cancellation petition.

6. Whether you think "trademark bullies" are currently a problemfor trademark owners, and if so, how significant is the problem?

7. Whether you think aggressive litigation tactics are more pervasivein the trademark area than in other areas of the law?

8. Whether you think the USPTO has a responsibility to discourageor prevent trademark bullying? If yes, what should the USPTO do?

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http://wtnnews.com/articles/7906/ 19 I 10/2014 3:41: 26 PMI

Trademark bullies to be studied (WTN News)

9. Whether you think the U.S. courts have a responsibility to dosomething to discourage trademark bullies? If yes, what should theU.S. courts do?

1O. What other U.S. agencies may have a responsibility to dosomething about the problem?

11. Whether you think Congress has a responsibility to dosomething to discourage or prevent trademark bullying? If yes,what should Congress do?

12. Provide any other comments that you may have.

If your business has been the subject of what you feel areunreasonable tactics by a trademark owner, this is your opportunityto speak up. Comments should be sent to the USPTO atTMFeedback@uspto.gov no later than January 7,2OIt.

If you have any questions about this or any other trademarkmatter, please contact Rob Petershack at 608-283-6718 or atRVPetershack@Axley.com.

According to the USPTO, a trademark "bully" could be described asa trademark owner that uses its trademark rights to harass andintimidate another business beyond what the law might reasonablybe interpreted to allow.

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Rob Petershack is a partner at Axley Brynelson, LLP focusing hispractice on intellectual property law with an emphasis on theprotection, use (licensing) and transfer of high technology as wellas trademark and copyright counseling. He also focuses onproviding alternative dispute resolution (ADR) services. He can bereached lt RVPetershackrdAxley. com

The opinions expressed herein or statements made in the abovecolumn are solely those of the author, and do not necessarilyreflect the views of -W.,lsJonsin Technology Network, LLC. WTNaccepts no legal liabili :,Or,responsibility for any claims made oropinions expressed herein.

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Trademark bullies to be studied (WTN News)

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hft p : //wtnnews. com/articles/7 906 / [9 I t0 / 2014 3 : 4 1 : 26 PM]

EXHIBIT D

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Martens?ioPEitY tAw

2040 Main St., 14th Fl., trvin6, CA 92614r (949) 76G(XO|

LmdrLyndaZadra8ync

September 5,2014

vtA cERTtFtEp ANp ELECTRONTC MAtt

Eric L. Woodahl, Esq.Victory Energy, LLCP.O. Box 72486681 KestrelDriveMissoula, MT 59807victorv. enero ize@omail.com

Re: Trademark and Trade Dress InfrlngementOur Reference No.: HANBEV.1643TtS

Dear Mr. Woodahl:

'Monster") in inteilectual propery miatters. As t am sure you are aware,

MoNsrER ENERGY@ "no

T1" ('craw rcon") marks. Monster usesof products, inc s, nutritionai suppl

mets. Monster also u ,s for its packagingbright green on black obrc on black] asown below (the "MON

KXOAAT T'ARTIIIS OLgOiI I SEAR LLP

Orange County Sen Dlego San Franclcco Sllleon Valloy Loe Angeles ssa(re waartngron DC knObbg.COm

Knobbe MartensPage 2

Monster's MONSTER Trade Dress has appeared on billions of Monster's products. Monster also uses itsMONSTER Trade Dress in connection with an extensive marketing camp:rign, including, among other things,sponsorship of music festivals, athletes and internationally televised sporting events. For example, fUonstersponsors numerous televised athletes who wear clothing bearing Monster's IIONSTER Trade Dressas shown inthe photographs below. In addition, Monster uses its trade dress extensively in connection with clothing,headwear, sports gear (including sports helmets), stickers, and decals, examples of wnicn are also shown below.

It has come to Monster's attention that Victory.Energy is using a trade cress that is confusingly similar toMonster's MONSTER Trade Dress to promote and sell 6nergy driiks, shirts, and sports helmets, as shown below(the "unauthorized products").

knobbe.com

Knobbe MartensPage 3

Additionally, Victory Energy is operating the website htto://victorvenerqize,r:om/, as well as a correspondingFacebook page and YouTube page that prominenfly display a trade dress; that is confusingly similar to theMONSTER Trade Dress.

Moreover, Victory Energy's product lineup mirrors that of Monster, evidencing that Victory Energy selected theoverall design of its energy drinks, clothing and sports helmets and related go,Jds in an attempt to trade off of thevaluable goodwill built up by Monster.

Victory Energy's confusingly similar trade dress causes people to believe that there is an association betweenyour company and Monster, which is false. This infringement causes severe damage to Monster's reputation andto the substantial renown and goodwillthat Monster has developed in its MONSTER Trade Dress.

Your unauthorized use of a confusingly similar trade dress constitutes trademark infringement, false designationof origin, and unfair competition under federal and state laws.

In view of the seriousness of this mafter, we hereby demand that Victory Energy immediately:

1' Cease and desist from further distribution or sale of the unauthorized products (including, but not limitedto energy drinks, clothing, and sports helmets) that use or include Mor ress, and cease anddesist from further distribution, display, or use of any unauthorized adr o1onal, and point-of-sale materials that include Monster's trade dress, including on your cor ite and on any socialnetworking sites, including Facebook and youTube;

knobbe.com

Knobbe MartensPago 4

2. lmmediately recall and pressrve for delivery to Monster any and all materials bearing Vtctory Energy,sabove referenced confuslngly simllartrade dress, together wlth an itemized inventory;

3' Slgn a declaration complelely and accurately dlsclosing Vic.tory Energy's sales of all goods bearingVictory.Energy's above referenced trade dress, the amount of an1, infiinging goods In i-nventory, anEconfirming that (l) tlctory_ Energy has discontinued all use of tre infringing trade dress, and (ii) VictoryEnergy will refrain from all use of such trade dress in the future; and

4. Pay Monster's aftomeys'bes incured in connection wlth this matter.

We are hopeful that this matter can be resolved wlthout the need to file suit. To that end, please respond to thisletter by no later than 99p@t1@r.!ji;!$4

Nothing in this lefter should be deemed a waiver of any of Monster's rights, claims, or remedies, all of which areexpressly reserved.

Sincerely, ,A/*rM

//Lynda J. Zadra-Symes

cc: Monster Energy Company

Certified Mail No.l 7013 '1090 0001 1681 2453

18807753

knobbe.com

Knobbe|lttEttECTuAt PnOttiTY tAw

XXOBAI fiARTEl{s OLgOlt I 3EAR LLp 2040 Main SL, 14th Fl., tMne, CA g26i4T (949) 76G,04(X

Lynd. J, Z.dn€ynrcaLynchZd nsymcaeknobbecom

September 5,2014

vtA cERTtFtED AND ELECTRONTC MAtt

Eric L. Woodahl, Esq.Victory Energy, LLCP.O.Box72486681 KestrelDriveMissoula, MT 59807victorv.enerqize@omail.com

Re: Trademark and Trade Dre*s InfiingementOur Reference No.: HANBEV.1643TtS

Dear Mr. Woodahl:

'Monste/') in intellectual prope{y matters. As I am sure you are aware,

MONSTER ENERGY@ and lf t@ ("Ctaw lcon") marks. Monster usesof products, incll energy drinks, nutritional suppl

Monster also u ve trade dres for its packaginggreen on black contrasting colors on black, aselow (the "MON iR Trade Dress'):

Orang. Courty San Dlego 6an Franclrco Slllcon Valley Los Angolos Seattlo w.ehrnsronoc knObbe.COm

Knobbe MartensPage 2

Monster's MONSTER Trade Dress has appeared on billions of Monster'si products. Monster also uses itsMONSTER Trade Dress in connection with an extensive marketing campaign, including, among other things,sponsorship of music festivals, athletes and internationally televised sporting events. For example, Monsiersponsors numerous televised athletes who wear clothing bearing Monster's N{ONSTER Trade Dress as shown inthe photographs below. In addition, Monster uses its trade dress extensively in connection with clothing,headwear, sports gear (including sports helmets), stickers, and decals, examprles of which are also shown below.

It has come to Monster's attention that Victory Energy is using a trade dress that is confusingly similar toMonsteis MONSTER Trade Dress to promote and sell energy drinks, shirts, and sports helmets, as shown below(the "unauthorized products").

knobbe.com

Knobbe MartensPage 3

Additionally, Victory Energy is operating the website hftp://victorveneroize.:om/, as well as a correspondingFacebook page and YouTube page that prominently display a trade dress; that is confusingly similar to theMONSTER Trade Dress.

Moreover, Victory Energy's product lineup mirrors that of Monster, evidencirrg that Victory Energy selected theoverall design of its energy drinks, clothing and sports helmets and related goods in an attempt to trade off of thevaluable goodwill built up by Monster.

Victory Energy's confusingly similar trade dress causes people to believe that there is an association betweenyour company and Monster, which is false. This infringement causes severe clamage to Monster's repulation andto the substantial renown and goodwillthat Monster has developed in its MONTSTER Trade Dress.

Your unauthorized use of a confusingly similar trade dress constitutes tradenrark infringement, false designationof origin, and unfair competition under federal and state laws.

In view of the seriousness of this matter, we hereby demand that Victory Energy immediately:

1. Cease and desist from further distribution or sale of the unauthorized products (including, but not lim1edto energy drinks, clothing, and sports helmets) that use or include Monste/s trade dress, and cease anddesist from further distribution, display, or use of any unauthorized advertising, promotional, and point-of-sale materials that include Monster's trade dress, including on your companyis website and on any socialnetworking sites, including Facebook and youTube:

knobbe.com

Knobbe MartensPage 4

2. lmmediately recall and prsserve for delivery to Monster any and all materials bearing Vtctory Energy,sabove referenced confuslngly slmilar trade dress, together wlth an itemized inventory;

3. Slgn a declaration complelely and accurately dlsclosing Victory Energy's sales of all goods bearingVic,tory.Energy's above referenced trade dress, the amount of any infringing goods In inventory, anlconfirming that (l) Vlctory Energy has discontinued all use of the infringing trade dress, and (ii) victoryEnergy will refrain from all use of such trade dress in the future: and

4. Pay Monster's attomeys'hes incurred in connection wlth this matter.

We are hopeful that this matter can be resolved without the need to file suit. To that end, please respond to thisletter by no later than Sortember 15. 2014

Nothing in this letter should be deemed a waivsr of any of Monster's rights, claims, or remedles, all of which areexpressly reserved.

Sincerely, ^/",zJfui'b

//Lynda J. Zadra-Symes

cc: Monster Energy Company

Certified Mail No.: 7013 1090 0001 1681 24b3

18807753

knobbe.com