A judge on 6 October awarded energy drink maker Monster Energy attorneys’ fees of nearly $21m and additional damages of $22m in its latest round with its now bankrupt rival Vital Pharmaceuticals, the makers of Bang energy drink.

The latest award adds to the $293m in damages given by a jury for false advertising in September 2022, bringing the total to a whopping $336m in damages, one of the largest awards in US federal trademark history.

District judge Jesus Bernal said that the court upholds the jury’s damages award. “The amount is not grossly excessive or monstrous, is clearly supported by the evidence, and is not based on speculation or guesswork.”

Commenting on the new court order, a member in the corporate transactions, intellectual property and litigation departments at Cole Schotz, David Gold, said that there continues to be a “misplaced emphasis on the first part of the Octane Fitness test”.

Octane Fitness is a 2014 US Supreme Court decision that made it easier to shift attorneys' fees to the losing side  in “exceptional cases".

Gold continued: "Under Octane Fitness, exceptionality can be found based on either the substantive strength of a party’s litigation position or the manner in which the case was litigated.

“Although the court considered both prongs, it is clear that the court was laser focused on what the court described as the defendants’ ‘refus[al] to cooperate’ and ‘disrespect for the judicial process’. That observation alone may very well have been sufficient to support the fee award, and should be a message to all that a party’s conduct and candor is as important, and in certain instances more important, than the strength of that party’s litigation position.”

The two drinks makers have had a contentious history dating back to 2018 when Monster Drinks accused its rival of selling Bang “by misleading and deceiving the public about the product’s ingredients and the benefits of consumption”.

The jury verdict in September 2022 found the defendant Vital and its CEO liable for false advertising under the Lanham act and awarded Monster $271.9m in damages. Monster had alleged that Vital had misled customers about the ingredients and health benefits of Bang’s ‘Super Creatine’, specifically the label ‘super creatine’, despite the product not containing creatine.

The jury also found that Vital had interfered with Monster’s contracts with supermarkets including Wal-Mart and Circle K and awarded Monster $18m in damages for its intentional interference with contract claim. 

Monster was also awarded $3m in damages after Vital was found guilty of stealing trade secrets, and a further $15,587 in damages for the Computer Fraud and Abuse Act (CFAA) claim, bringing the total to $293m.

In December 2022, Monster filed a motion for permanent injunction against Vital.

In April, the court issued a permanent injunction under the Lanham Act prohibiting the defendant from falsely or deceptively claiming that ‘Super Creatine’ is creatine, that Bang contains creatine and that Bang or Super Creatine provide the physical, mental, health or other benefits of creatine. 

In July, however, Vital filed for bankruptcy and Monster bought out its smaller competitor for $362m.

Monster also won a $175m award for trademark infringement against Bang in a separate dispute last year.