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-zone/347260-monster-cable-suing-monster-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.
