Blue Jeans Cable to Donate Sales Profits for Monster Mini Golf Lawsuit

[MinusTheBear]

If I remember correctly, I saw an article where Monster Cable sued a company making and selling some kind of animal product with the Monster name in it. Monster Cable either lost, case thrown out, or withdrew. So, if I recall correctly, there is precedence already.

I asked that same question a while back. It was left unanswered but we did have some fun with it.

Cables, Deers, Lawsuits Oh My! Does this set any sort of legal precident?

[MonsterMiniGolf]

In response to FirstReflection's post on how to get to mainstream media, the answer is diligence. Christina and I are working around the clock, submitting these editorials to everyone and anyone in the free world that has a voice, public forum, blog, etc....Every time there is a new story or editorial, it is new news, and we submit that news. Even forwarding the story to friends and asking them in turn to forward to THEIR friends, the law of averages says that eventually, it will fall on the ears of someone who is in mainstream media, or KNOWS someone in mainstream media.
We have had some luck so far, as Channel 10 in RI ran a 2 minute piece the other night, and also on Fox in Tampa a few days ago. It's a long journey, and the only way we can keep it from losing momentum, is to keep fighting. The following is a cut&paste of a response I put on the "Call to Arms" forum on Audioholics, but I thought it might be appropriate here as a battlecry....

"In response to Haraldo's Facebook comment...

("Any creative ideas? Something that really makes a difference

I suggested to all members on the facbook group to throw away their Monster products, but that doesn't make a dime of a difference to this big company..... Well if the group were 50.000 members, now we are 196....

Must be something better than that....")

We may only have 196 members so far, but the question is......Have 196 letters gone out to the MC camp? It's one thing to be a member of a group who's cause you support, but it's another thing entirely to be an ACTIVE member of that group. I sometimes wonder is MC is even remotely AWARE of the unrest they are causing with their customer base. I mean, WE know that their lifetime customers are jumping ship by the hundreds, but if THEY are not aware, then our efforts are falling on deaf ears. I firmy believe that if enough truthful, honest messages got through to the MC people, that they'd HAVE to estimate a dollar amount that it is worth, especially in the Christmas buying season.

So, how can Facebook (as well as ALL of the other forums....) help?
1) EVERYONE needs write letters and/or emails. They need to be sent NOT only to MC's legal dept, but ALSO to their staff, their PR people, their marketing people, etc...(as well as their retail outlets) What I fear is this....It is their legal dept who earns their money by carrying on these lawsuits. So, it is in their best interest of self preservation to simply delete the emails, and not let anyone else see them, or understand that their is even a problem.
When Christina sent a letter to Noel Lee personally, it was intercepted and responded to by their in-house counsel David Tognotti. Mr Lee never even saw the email! Therefore, there is a good chance that he is being KEPT unaware of how the actions of his hired soldiers (and their apparent power of attorney) from just how much bad blood their actions are causing his once respected brand. (I have to believe that he at least STARTED OUT with good intentions).
So in short (or long at this point....) encouraging EVERYONE to write these letters is key. 194 active members is better than 50,000 inactive ones.
2) The second most important thing that can be done is to KEEP SPREADING THE WORD! It is easy to get riled up and start something, but it is human nature to then sit back and watch it wane, then lose interest. Christina and myself are working around the clock forwarding this info to more and more news sources, public forums, blogs, famous people, etc....and every day when we think we've reached everybody, we rack our brains and come up with more. You, the good people at audioholics have been EQUALLY diligent, and that is extremely commendable, because it's not even your fight. You are amazing.
But in response to to Haraoldo's Facebook comment......We have 196 member (and counting), each one of which more than likely has DOZENS of friends in THEIR own personal circles, who in turn have dozens more in THEIR individual circles. The power to reach people on Facebook is SO exponential, that we must use it to our advantage, and encourage our 196 members to tell their friends, and THEIR friends, and so on (Remember the Clairol commercial? OK, now I'm showing my age:-).
It doesn't take many generations of this strategy to actually BE 50,000 strong.
Having said that, I am BRAND NEW to Facebook, and do not know the ins and outs yet. Was it Haraldo who stated our Facebook group? If so, let's open up a dialogue on how to use Facebook to make our awareness go viral. If you like, I can be reached in the office on Monday at 401-454-8100, or on my cel before that at 401-486-3636. Or by email anytime at patrick@monsterminigolf.com
-Patrick Vitagliano

[MonsterMiniGolf]

Wait until you see what we have planned for CES.
-Patrick Vitagliano

[j_garcia]

Could we get this thread stickied while this is going on?

[rnatalli]

Very noble. I just bought something from Tartan (BJC division).

[MatthewB.]

I just hope Monster Mini can stay the course, because we all know Disney sure ddin't with Monster suing Disney over "Monsters Inc" Disney and Monster came to a settlement where now when you buy any Disney DVD, you see some paper insert advertising Monster and how great your Monster will make your PQ and SQ (Total BS mind you) but if a company as large as Disney caved in, I sure hope the little guys can win.

[WmAx]

Wow. Did Monster Cable finally chew off more than they can chew, and will they be able to spit it back out, or is this lump of rotten peanut butter going to stick with them?

I'm rooting for court judgement. They so deserve to have their IP claims rendered worthless so that they lose the ability to bully so easily.

I am curious of Monster Mini Golf, would, under any case, agree to a sealed settlement? I would hope not after all of the effort they have put into this so far, and that sealed settlement would leave Monster free to harass the next company that dares to use the common word 'monster' in a product or name.

-Chris

[Matt34]

Thread stuck unless Admin says otherwise.

[MonsterMiniGolf]

OK, we're in for a long one here, so fair warning!

It appears that the diligent little bees from the MC legal camp have put together a carefully crafted, 16 page form letter, and it appears that they are issuing it as their new "standard response" to those who are emailing them now. It appeared today for the first time publically on the gearslutz forum...
http://www.gearslutz.com/board/moan-...mini-golf.html
and the recipient was kind enough to post it for public opinion. You can read the entire post, and our official point for point response on gearslutz, but for your surfing convenience, I am reposting the entire thing right here.
Before I do, let me first say that MC in my experience (most especially, Noel himself) has been largely elusive throughout this entire process, and I can't help but feel that thanks to you, the court of public opinion, that he is being "smoked out of his cave" in a manner of speaking.
So, without further ado.......
Here is the link to MC's 16 page response, including a 7-point forward by Noel himself......(Click the attached link at the bottom of this post)
(Sorry, I tried to embed it here in the middle of the post, but it wouldn't let me)
Moving on.....We did feel the need to address each and every one of Mr Lee's 7 points, and we did so individually on the gearsluts forum. But....here they are, reposted for your convenience.....


In an effort to not take up 16 pages, I'll respond section by section......Starting with this one.........

(MC Quote)
"1) Monster Mini Golf Misconceptions;
Monster Mini Golf would like to disguise themselves as a small Mom and Pop
business, but they are in fact a national organization selling franchises with the
Monster trademark. They currently have 24 franchise locations across 10 states
stretching from California to New Jersey. They have filed for several “Monster”
marks, including “MONSTER” by itself , MONSTER MINI GOLF, MONSTER
FAMILY ENTERTAINMENT CENTERS and MONSTR MINI GOLF in an area of
business where we have established trademarks awarded by the United States Patent
and Trademark office. They charge franchise and set up fees upwards of $200,000,
part of which is the licensing of the name “Monster:” to all of those franchises. Check
their website http://www.monsterminigolf.com/cost_breakdown.html"

(MMG's Response)
Four Years ago, my wife Christina came up with the idea for an indoor, glow in the dark, mini golf concept. We had no money, and we were renting warehouse space in a run-down decrepit old mill-building. She came up with "monsters" as a theme, since most people thought the old mill was more like a haunted house than a viable retail space. Further, without any money to purchase props and such, the "monster" theme allowed a lot of creative freedom as we literally MADE all of our original monster props out of paper mache', with our own two hands.
When our little idea started to take off, we decided that we needed to expand it, before someone else with deep pockets stole the idea and got rich off of it. We looked into franchising, but found that it cost around $130,000. (give or take) to build a legal franchise program. We found a company that believed in the strength of our little concept enough to accept a payment plan of $5,000. per month. We gave up our apartment to save money, and slept on the floor of our mini golf course for about a year in order to honor that payment plan.
Anyway, We became licensed (by the FTC) to offer franchises in the US in October of 2005, and to date, have sold 22 of them, and opened 17 so far. To date, niether Christina or I have taken a paycheck, as every penny still needs to be invested in this still-new business. Further, while Christina and I have graduated from sleeping on the floor of our original store to save money, we still do not (and cannot afford to) own a home. We rent an apartment next door to where we rent our franchise office. Our staff is very small, only 5 people work in the franchise office, right alongside us. They all have our cel phone numbers, and can call us 24-7. We remain as mom and pop as it gets.
As for our franchisees, they are ALL mom and pops who have invested their life savings into building and opening their stores. Our franchise fee is $30,000. and the majority of that gets eaten up traveling back and forth dozens of times as we personally assist the franchisee through every step of the process from site selection, to zoning meetings, to lease negotiations, to build out, including personally attending each and every grand opening.
The majority of the "set-up" fees MC refers to in their response, go to third party contractors, builders, monster makers, architects, etc.....
We recently started a company called "Twisted Toybox", and that company now builds and installs what we call the "Phase II buildout package". Twisted Toybox charges a flat fee of $165,000. for the design, fabrication, and installation of that package. It takes roughly 6 months from start to finish, and it costs us an average of $148,000-$151,000 to get it done, including travel. Our modest $15,000. profit margin helps pay for the warehouse, 1 box truck, tool maintenance/wear & tear, and variuos insurances. To date, Twisted Toybox is still in the red, showing a loss to date, but we hope to get into the black by the end of 2009.
That is the truth, the whole truth, and nothing but the truth about our little MOM & POP operation. If it weren't for this lawsuit, Christina and I might have been able to put a down payment on our first house in 2009, but it looks like we will remain renters for the time being.
Noel Lee owns more than one home. It is rumored that his lavish CA residence also houses his impressive collection of Lamborghini’s, Bentleys, and other extravagant high-end sports cars. We hear he has 53 in all.
I'll be up for the rest of the night responding to each and every one of the fallacies that MC has spewed in this letter.
Sincerely,
-Patrick Vitagliano
Stay tuned for the next post!

I will comment briefly on the next paragraph, but I'll keep it brief, and try to relegate my responses to dispelling the falsehoods that MC has spewed as "truth" in their 16 page response to you, which if I had to guess is going to be the new "stock" response everyone receives from MC from now on in this matter. But, this one is worth commenting on....

(MC Quote)
"2) Monster Cable as been awarded many marks by the Patent and Trademark
office that we have to protect that go far beyond cables.
Many may think that we are only Monster Cable. Over the past 30 years we do
business with many Monster marks. We have been awarded 100 registered Monster
trademarks in 12 different classes by the Patent and Trademark office, most of which
are used with products with smaller sales than Monster Cable, but this doesn’t mean
we don’t have the rights to them or the obligation to protect those rights. All of these
trademarks predate Monster Mini Golf’s application for trademark, which has not yet
been granted. These are our Monster trademarks.
Monster Mints. Monster Power. Monster Game. Monster ScreenClean. Monster
Performance Car. Monster Music. Monster Pro. Monster Central. or Monster Sport.
The name “Monster” are registered trademarks owned by us in the categories of
electronics, music, games, food product, entertainment, cleaning products. The list of
all of Monster’s current marks that we have to defend are listed below. More facts. 30
years ago, the Patent and Trademark office granted Noel Lee the name “Monster”,
exclusive of the name “cable”. Although we tried to trademark Monster Cable it was
not permitted."

(MMG response)
For the most part, this paragraph to our knowledge is true. Sadly, many of the myriad of marks that they do indeed own free and clear, were marks that were started by other hardworking folks who were forced into "license agreements" when faced with ongoing and expensive litigation.
Case in point.....(While I am not permitted to discuss the specifics of our "mediation" with MC, I will relegate this comment strictly to the extortive "Settlement Offer" that MC attempted to pass off as "Fair", before we went into mediation.......)
We would sign our name over to them, pay them $80,000 in back royalty for using the word Monster to date, and an additional $3,000. off the top of each franchise sold from now until eternity, as a "royalty" for the continued use of the name which they would now own, because we had just signed it over to them.
Had we taken this ungreased fist of an offer, they'd be able to add this name to their ever growing stable of Monster marks that they DO indeed own, they just fail to mention that they were not the original owners of many of these names, just the bullies that took them.
It's kind of like, if I push you down on the playground and make you give me your lunch money, it is now officially MY lunch money.
-Patrick Vitagliano
More to come...Stay Tuned!

OK, now to 3,& 4....

(MC Quote)
"3) Monster is obligated to defend its marks or risk losing them."

4) Monster must defend its marks just as other well respected companies have done so."

(MMG Response)
This is a fact, and if there were actually a likelihood of confusion, I'd be on their side. Unfortunately, they are "bending" this true statement to suit their needs in this case.
They claim there is a likelihood of confusion, and that is their opinion and their right. We claim there is not, and that is our opinion and our right. Ultimately, a judge will decide. Stay tuned.....
-Patrick Vitagliano
And on we go to the next post, as my character limit will be exceeded if I try to fit this in a single post......Stay tuned.

[MonsterMiniGolf]

And were back....
(MC Quote)
"5) Wrongful accusations made by Monster Mini Golf.
We have never sued the Chicago Bears. We have not filed 400 lawsuits. We do not
pick on small business, as we are also a small business. We don’t like lawsuits any
more than any other company, and don’t like spending money on attorneys, especially
considering the current economy."

(MMG Response)
Ya got me here. They are correct in that they haven't "Sued" over 400 companies. The correct term for what they have done is "Opposed" them, not sued them, and that was enough for the majority of them to have backed down and surrendered their names voluntarily, avoiding the ugly and expensive suits, which are reserved for a much smaller group of people who don't back down.
So yes, it's true, "Opposed" would be the accurate term. Want to see the list? Get your reading glasses on, it's a LONG one. Click the following link for details straight from the USPTO's website detailing case for case, ALL of the companies that MC has......"Opposed", is it fair to say the USPTO's list is accurate, and not a "wrongful accusation"?
(Enjoy it!)
-Patrick Vitagliano

http://ttabvue.uspto.gov/ttabvue/v?q...=&pn2=&cop=&cn

Let's tackle number 6, shall we?

(MC Quote)
"6) We want to end this lawsuit as much as anyone.
We have made many overtures of a very very inexpensive licensing arrangement to
Monster Mini Golf which would allow them to use the name, while at the same time
keep our trademark rights intact. They refused, so we had no option but to file a
lawsuit. Monster Mini Golf can easily avoid the costs of a lawsuit, and save everyone
time and money if they would license the mark at very little cost to them, and a
fraction of the cost of a lawsuit. They already charge their franchisees for the license,
so it would be already built in to the price. We are working with their attorneys to try
to settle this to everyone’s satisfaction."

(MMG Response)
I wholeheartedly believe MC when they say they want to end it as much as anyone. Arguably, MORE than anyone, as the massive outpouring of letters that I've seen, documenting their customer base jumping ship in droves has GOT to have a dollar value to it, right? (And I only speak of the ones that the authors were kind enough to send us) Of course they want it to end, as it appears (as a wise man once said) that they've "Stepped in ****".
As for the offers that they describe as "at very little cost" to us, I talked about that earlier, and don't need to go down that road again, but I will say this........Hypothetically, even if they offered "No Cost" license agreement, the fundamental problem is not the cost, it's the LICENSE AGREEMENT! HELLO????? Are we glossing over the fact that it has to start with US signing over OUR name to you????
THE USPTO GRANTED OUR MARKS, because THEY felt that there was no likelihood of confusion between us, and the 400(plus or minus) other "Monster" marks in use in commerce already, regardless of ownership. Yes, that's right, they granted our marks. YOU opposed them, and have been doing so for over a year, and when we didn't cave, you filed suit.
We shall defend to the death, as we believe that fundamentally, the USPTO would not have granted our marks in the first place if there were indeed a "Likelihood of confusion".
Amen.
-Patrick Vitagliano
Stay tuned boys and girls......More to come!
And that brings us to number 7....

(MC Quote)
"7) Corporate Bully?
It’s important to note that we are not some gigantic corporate bully as portrayed. We
are also a small company with a great culture, still family owned with 500 employees
in Brisbane California. We are not a public company with deep pockets. It’s not
inconceivable that Monster Mini Golf could exceed the reach of Monster Cable with
the trademark of Monster. You can come to our web site to meet the Monsters,
www.monstercable.com.
Below is a more thorough explanation with lots more details, but we thought that it
was necessary for us to explain the entire picture before anyone passes judgment on
our company or our actions."

(MMG Response)
You know, it's funny, but in four years, the entire combined gross income of all of our companies combined totaled around 1.6 million dollars, which is an average of around $400,000. per year gross. (Net profit is another story all together, and is MUCH less, and mostly reinvested)
Yet, in item 1, (remember item 1?) Noel tried to convince you that WE were NOT a mom & pop, but a national corporate entity, selling franchises coast to coast, blablabla.....
Now, just a few pages later, flipflops, and tries to convince you that his (rumored) $400 MILLION dollar per year company is actually the harmless mom & pop entity. He can't have it both ways.

Let's take a moment to reflect on this shall we?
Noel, $400,000,000.00 is rumored to be your companies annual gross, (Noel, can you please confirm or deny this rumor?) which is roughly 1,000 times our annual gross.
We've seen arial photos of what is rumored to be your sprawling CA estate, we rent an apartment.
You are rumored to have a collection of 53 exotic sports cars, some which cost more than the average home, (Is this true Noel?) We drive a 2005 escalade, which we bought used, and have a 6yr note on. We love it, and will continue to make our payments, and we consider this 4yr old gas guzzler an extravagance that we've earned.
You spend an enormous amount of money each year on "Legal" expenses, opposing smaller companies and forcing them into settlement, have an IN-House legal department, and while you may not have "Sued" 400 companies, you have sued some, and you are currently suing us.
We have never sued anyone. Ever. In fact, the most we've ever spent on legal, is what we have been forced to spend fending off your vicious attack.

So before you tell the world that you are not a "deep pocketed" company, or try to pass yourselves off as a loving, caring, family organization, while simultaneously trying to paint US as corporate giants, please take a long hard look in the mirror, and at your lifestyle as it compares to ours.
Diana Ross is playing your private party this year. (Enough said?)
You should be proud of the empire you've built, as for the most part, (as it pertains to cables) you've earned it.
You don't need to take the one we are attempting to build. We do realize that in an increasingly wireless world, that there must be pressure to diversify into other fields, or risk becoming irrelevent, but conquering the weak is somewhat of a dictator move, and dictators have been generally frowned upon throughout history.
We truly don't know how you sleep at night, but I'm glad that the general public will have the chance to read both sides and make their decisions about our respective companies.
Good evening sir.
-Patrick Vitagliano
So there you have it, our personal responses to all seven of their positions. Now, both sides of the story is officially out there for all to see.
Once again, we thank all of you for your time, support, and interest in this matter, it is greatly appreciated.
-Patrick Vitagliano