OA661: Monster Cable and the Best CnD Response Ever

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Open Arguments. This is episode 661. I'm Thomas. That's Andrew Torres, legal mind of a generation. I don't know. How's going, Andrew?

0:01:28 Andrew: I was doing fantastic. Flattery is always—helps improve my mood, so there you go.

0:01:35 Thomas: Best Harvard lawyer ever because your competition is Dershowitz and a bunch of other criminals, Ted Cruz. You know, there's plenty, plenty, not a lot of competition.

0:01:40 Andrew: Alan Dershowitz. Oh, God, yeah, that's—yeah.

0:01:46 Thomas: No, no, but you are the best, still the best. Still the best even with good competition, I'll say. Right. All It's Deep Dive Tuesday. You have promised what is going to be a very fun jaunt about monster cable. I can't wait to hear about this. Let's get right into it.

0:02:01 Andrew: Yeah, let's do it.

0:02:03 Clip: Down the law, down the law.

0:02:07 Andrew: So part of what made me think about this was that I had made an offhanded comment during one of our music episodes about the difference between intellectual property in written form, in musical form. And then, you hey, by the way, it's a brave new world out there in software form, right? And a lot of folks wrote in to say, yeah, I'm a software engineer, you know you're damn right. Uh, some people said, you know, I had, again, very, very quickly, I don't think this qualifies as an android was wrong," but I'll, I will take it on the chin if you feel that it does. Uh, that that initial Microsoft, uh, Apple lawsuit, uh, over the quote "look and feel" of Windows versus the Apple environment, uh, was super complicated, right? It resolved that, you know, uh, individual design elements had various levels of protection.

0:03:00 Andrew: And look, that is all the case. What I was trying to convey with that was software is different than written work, right? You can show copying through more than just like direct copying of the code. There's

0:03:06 Thomas: Oh, right. I saw some people say that like you might have been thinking of a different case. Is that not?

0:03:16 Andrew: A lot out there. And so that will be coming, But thought of kind of a related case. And this was a story that is actually a cease and desist letter that is now 14 years old. But I Am litigating a cease and desist on behalf of another client right now. And I was reminded of it. And I also wanted to talk about sort of the difference between a trademark cease and desist and a patent cease and desist. And when a company has been accused of engaging in trolling for for both, and the intersection of all of that is Monster Cable. And I thought perhaps, because Monster Cable is, for a long time, like one of the most acrimonious subjects of conversation in the audiophile world, I thought perhaps you might have, uh, known about or have an opinion, uh, about Monster Cable, you know, in in the other part of your professional and personal interest that is, you know, creating music. So

0:03:18 Thomas: Okay. Oh I guess I thought this this was just like the HDMI cable thing.

0:04:22 Andrew: It became that way because, uh, that wound up being a huge downfall for, we'll get there. So All

0:04:28 Thomas: Okay. Oh yeah. Safe to say, no, I haven't heard anything about this in the audio context actually. So either it could be before my time or I, you know, just hasn't come up. I don't know, but no, sorry.

0:04:34 Andrew: Right. Yeah. Well, let's get there. So I am going to read, because again I am talking about a party that is notoriously litigious, so we're going to follow our own best practices and advice. All the, uh, evidence is in the show notes and I'm going to identify on the show, uh, so right here I'm just reading from the Wikipedia entry for Monster Cable, that's my citation for For These claims, um, a guy named Noel, N-O-E-L, Lee Yeah.

0:05:01 Thomas: There you go. Null monster. No.

0:05:06 Andrew: Founded Monster Cable Products in 1979, and so Leah was, was our, you know, 1979's Thomas Smith, right? He was self-described and described by Wikipedia as an audiophile and an engineer.

0:05:21 Thomas: Can I just say, I don't describe myself as an audiophile. Sorry. I don't know. I just, I don't want people to think, I feel like that's kind of a douchey thing to say. I don't know why.

0:05:22 Andrew: Oh. All right. Ah. I would describe you As an audio File, but Not No. Insulting.

0:05:31 Thomas: Oh, okay. Well, Well, maybe other people are allowed to describe you as an audiophile. I think that's fair. Like, I describe you as a brilliant legal mind, but if you went around saying, Hi, I'm Andrew Torres, brilliant legal minded, I'd be like, Andrew, yeah, shut up.

0:05:33 Andrew: Yeah. Okay. Yeah, the That's True, you Also you also described me as the opposite of an audiophile, which is true. Which is 100 Yeah. So it is

0:05:51 Thomas: That is just... I don't know what that word is, but we need it.

0:05:56 Andrew: Not quite Eli Bosnick recording 80 episodes with his microphone backwards, uh, which literally happened. But Uh It's Not far Off Yeah.

0:06:03 Thomas: But not that far off of that, okay?

0:06:06 Andrew: You're supposed to hear yourself through The the headphones.

0:06:08 Thomas: Oh, you come by it honestly.

0:06:08 Andrew: Yeah. I have, I have indeed. So, um, he, uh, again, I'm just gonna quote from Wikipedia, became convinced that audio cables could be engineered to improve audio quality by conducting electricity more efficiently. So he Experimented with different copper qualities, wire constructs, and winding methods of audio cables in his family's garage and comparing them while listening to Tchaikovsky's 1812 Overture, right? So, da-da-da, da da da, da dun dun, yeah,

0:06:22 Thomas: Sure. Nice. That sounds cool. That is, there's nothing wrong with that concept.

0:06:38 Andrew: Super cool. And, know, that used in, classic media and all sorts of good stuff. So, very, very cool. So, using a borrowed portion of somebody's booth at the 1978 Consumer Electronics Show, which used to be, there are, I don't know if CES is still a thing, but in the late 1970s, like, that was, I was a kid, I wanted to go to to CES in the in the 80s, not in the light 1970s, I was like toddler, but but in the 1980s I wanted go, that's where new computers were introduced, and like in the mid 80s they were releasing these crazy computers all the time, like, you know, with uh differing features, and I I was was a big old geek and that's where I wanted to go. Never did get a chance to go

0:07:16 Thomas: Oh, so is this like what, what is now just the, the Apple event or something where it's, okay, cool.

0:07:21 Andrew: Kind of but these were huge conventions. You got there, all the big major players had booths and they showed off their new products. And so he, um, got up booth, a uh, at CES and did demonstrations of his cables in comparisons to standard wires. And, and I've said this is kind of like the audiophile equivalent of the Pepsi Challenge, right? Like in the 1970s, yeah, Pepsi, like, sent representatives, they went to malls, they were like, uh, what do you drink? I drink Coke. Well, okay, well, would you be willing to take the Pepsi Challenge? Sure. You know, let's hide it, uh. Drink A, drink B, do you have a preference? Yes, it's drink B. Drink B is Pepsi.

0:07:42 Thomas: There you go.

0:07:57 Andrew: And so, uh, it then says, after a positive reception at CES, he quit his job and started Monster Cable Products with $250,000 in bank financing. Monster's first cables were manufactured by Lee, by hand, and sold door to door yeah, I know 1979 so

0:08:06 Thomas: There Nice door to door. Wow. So it's like everybody, I guess you're trying to sell basically everybody's, you know, improving their connection from like their record player to their speakers basically. Please. Okay. Interesting. So it's not like a highly technical recording studio product.

0:08:21 Andrew: That's Exactly right, and

0:08:30 Thomas: Gotcha.

0:08:29 Andrew: That's right, it's a consumer product for people. And remember, like, the 1970s, were there may have been earlier versions of this, but, uh, as somebody who's kind of like look back on music history and researching for the show, it feels like the 1970s was a time in which there was sort of a pitch to consumers for what you would think of as kind of the beginning of the audiophile concert, right? The idea of like, oh, hey, you know, this stereo delivers this kind of exceptional sound, right. Right. These speakers deliver this kind of exceptional sound. And today that's super commonplace. Right.

0:08:54 Thomas: Right.

0:09:07 Thomas: Because back in the day, it was just that big horn coming off the, you know, whatever, whatchamacallit. There wasn't a whole lot of like, hey, I've tested all the different horns and I'm going to go door to door. What is the word for that giant thing that comes off of it, you know what I'm talking what is that

0:09:08 Andrew: Yeah. Yeah. Like it's like a like a Klugele horn or something. But yeah? So you have high-end component, again, for the 1970s, you have hi-end stereo components, right, separate, uh, componentized audio, high- end speakers. That's where the, but the electronic stores, that's where you went to buy your stereos, uh, would give out, again, what Wikipedia describes as low-cost lamp cords to consumers for free, right? And so the idea was, you yeah, everybody just sort of like plugs in their stereo equipment with these, you know, crappy little chords. And I remember, right, my first stereo, uh, which was a hand-me-down, uh, not, that I got, uh, in my room as a teenager in the late 1980s,

0:09:25 Thomas: Yeah what nothing

0:10:07 Andrew: Uh that still, still had an eight track player in. Like it. So that tells you this was not a new item. We were not particularly well off. But I finally had a radio with separate stereo speakers that I could play in my room when I was being a moody teenager.

0:10:08 Thomas: Better is there anything better than the first bit of like music that you get to yourself in life. I mean, that was the best. Yeah.

0:10:25 Andrew: Yeah, yeah. Yeah. And so those speakers plugged in by this, like, you know, crappy little cable that it just had the little cord with the single prong that you plugged it, that you plugged into the back of the speaker, and then you plugged into your stereo, and then, you know, kind of crackle. So Monster, again, right, Wikipedia was credited with creating the market for high end audio cables in the 1980s, using this sort of Pepsi Challenge, right, saying, yeah, you're buying a high-end stereo, you're buying high-ends speakers, why are you using these crappy cables? And let's do a side-by-side. Let's listen. And I will say that this was kind of the first controversy because monster cables were expensive. And, again, the basic sales model was, if you're already paying, you know, X hundred dollars, yeah, why not pay more for quality cables that will enhance the experience?

0:10:59 Thomas: Yeah it's a good sales pitch especially when you could, it's theoretically, you know, if if the pitch is true, like, if the product's real, theoretically the bad cable you're using that's, you know, super cheap, is rendering your super expensive product useless. That's a good sales pitch

0:11:31 Andrew: Yeah, that's, it absolutely is, is you, and combine that with, um, Monster, then, again, this is documented, uh, provided heavy benefits to its sales force, uh, so individual sales, and they were salesmen, let's be honest, individual salesmen, uh, were highly incentivized to sell Monster Cable, uh, as much as possible, right. The authenticity of the sort of Pepsi challenge with audio has been disputed over the years. And I've, I found a couple funny ones, right. The best is a 2008 Consumerist article, still available online, we'll link it in the show notes, that involve the following protocols, right? All so, a 13 people were gathered together to doing a blind test on what they were told was going to be two separate commercial cables. And now here I'm going to quote from the Consumerist article. "Unknown to me and our 12 audiophile buddies, prior to the ABX blind test," right, you listen to one, you listened to two, you listening to A, you, you listen to B, and then you listen to the third sample, and you're not told, and you have to identify is that A or B,

0:12:00 Thomas: Interesting okay

0:12:39 Andrew: "He took apart four coat hangers, reconnected them, and twisted them into a pair of speaker cables. Connections were soldered. He stashed them in a closet within the testing room, so we were not privy what he was up to. This made for a pair of two-meter cables the exact length of the other wires. The test was conducted." After five tests, right, ABX, no one could determine which was the Monster 1000 cable or the coat hanger wire

0:13:03 Thomas: No way yikes I was gonna say, like, nowadays I could do a thing where I, like, mix down our podcast at, like, a super high quality, you and then, like, a a really low quality, and be like, which, which one's better, pretend I'm playing the same one

0:13:16 Andrew: Oh put a pin in that. "Furthermore, when music was played through the coat hanger wire, we were asked if what we heard sounded good to us, and all agreed that what we heard sounded excellent. However, when the AB tests occurred, it was impossible to determine which sounded best the majority of the time and which wire was in use. Needless to say, after the blindfolds came off and we saw what my brother did, we learned he was right.

Most of what manufacturers have to say about their products is pure hype. It seems the more they charge, the more hyped it is." Okay, so that's 2008 Consumers. They did end with this delightful piece of snark that I just have to read, which says, "Of course, a coat hanger doesn't have a Monster Cable lifetime warranty, so if your coat hanger breaks, you'll have to go out and buy another coat hanger." I will tell you the audio file the pro monster side of this argument, uh, is, oh, okay, but that's two, a, that's meter length, right, that's six feet, so maybe you don't need that in, you that initial kind of stereo setup, but like, you know, if you're, uh, particularly if you are a band, but you know also if you were like, if you've got a huge rig and it's going to go 30 feet or 50 feet, right, it's much more likely to the signal to degrade over those longer distances. That was sort of their argument.

0:13:17 Thomas: Yeah okay so if we're talking about analog audio signals from My, I'm nowhere near an expert, Andrew, and not, I'm like super into the bare bones, like technological, you scientific component of sound. I kind of, you know, I like how things sound. I like the sound, sound part, not so much the, you know, voltages and all that, whatever, whatever. But I'm pretty sure that like if you have a balanced audio cable, pretty much is about as good as it gets. And balanced audio cables were invented in like the 50s. So I'm skeptical of the idea that you could hook up different cables from like a record player to speakers and barring any obviously like, you know, massive or something. I'm, I'm skeptical that you would, you would notice a quality difference. There could be like, again, there's signal to noise ratio.

0:14:32 Andrew: Uh-huh.

0:15:17 Thomas: There could Be a noise difference in, you noise produced by other electromagnetic, whatever, like power cables and stuff like that. Like there's that. So, I mean, I guess, I Guess if the test was like, do you hear any additional hissing or something that could be possibly a cable thing, but you're not, I don't actually think it's very possible to be like the quality, the sterling quality apart from that is really all that much better based on just a cable. But that's just from my limited knowledge.

0:15:48 Thomas: Right. I think, the truth is it's just way more about A, the the source signal and B, the speakers.

0:15:46 Andrew: Plead agnostic on Hmm.

0:15:55 Thomas: I think it's because I think an analog signal is just like, I, you don't know that the cable can do much more with that apart from, again, interference, preventing interference, signal to noise ratio, that kind of stuff. So I don't know, but who knows, maybe, honestly, again, this is not my forte, so I'd be happy to hear, I love when we hear from you know, experts of, you people who are real experts in that component of audio, I'd be interested to to hear what they think on that. All This episode's brought to you by Aura Frames. I hope you've heard me talk about Aura Frames before because I love them. We have three of them. They're great. You want to spread a little more joy this holiday season, Aura Frames are a great gift for basically anyone. Name the number one best digital picture frame by Wirecutter, The Strategist, and more, Aura is nothing like the digital frames from a decade ago.

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0:18:11 Andrew: I also think you may be hitting upon in, in audio, and again, total speculation on my part, but but the difference between a digital signal and an analog signal, right, like so these were analog signals, right, and analog signals can can degrade over time, right, you get interference and, know, and it comes out as, uh, a wine or a missed note or whatever, that was all kind of part of the debate, and it was like how are you going to resolve it, and, you know, some people claimed they absolutely could hear a difference, and some people blamed, you know, was the same as coat hangers, and you then came HDMI, is the kind of the major transition point, right, is 2000s, early 2000s, now, right, you are talking about a digital signal. This is the first time that component audio is going to be conveyed to your components via digital signal.

0:19:07 Thomas: Yeah.

0:19:07 Andrew: And I'm going to give you the monster argument, consensus right? Is pretty much what you just said, right, like an analog signal, is, right, know, think of it like grooves in a record player. Right. Like you can you scratch the groove and then, you when it hits that scratch, that will convert that into a bad sound sounding sound. Whereas, Right. You Now, if I delete a segment out of an MP3 file, it will just say file can't run. Or to get to that part and crash. Yeah, exactly, in right? Other words, there's not a different, like there's, think about my emailing you, you my audio, right. It's not like you would be like, hey, I need you to use this, a higher quality internet to email it.

0:19:32 Thomas: You could have a dropout Yeah, yeah. But a higher quality Jeep so you're saying it's binary, it's basically, you, it's you either got it or you didn't for the most part, and there's not room for like higher quality when it comes to, yeah.

0:19:54 Andrew: Yeah, it doesn't get, yeah, it's not, like, the difference between premium and regular gas, right, like this is a little bit better. Like, no, no.

0:19:59 Thomas: The the Only, okay, so that, and it really depends on precisely what technology we're talking about. These days, when you're trying to get like, you know, 8K video signal, like there is such a thing as you need so much energy to maintain this super high data transfer rate in a cable that that totally matters. But I don't think that's this.

0:20:03 Andrew: Yeah.

0:20:21 Andrew: That is part of, I'm going to read you, this was an Engadget 2009 interview with Lee, and so this was part of their argument on why, yes, it can matter with their cable. So I want to read to you the Monster part of the argument. But again, I will tell you, from the from the sales perspective, the idea is, yeah, you get these people buying three thousand dollar TVs, it's not hard to say like, hey, man, like put a hundred dollar cable on this to connect it up to the wall, the right difference in that price, uh, and the idea of like you're not, you're not going to use a factory cable on your brand new state-of-the-art TV, are you, right? That's it, that's a good sales tactic

0:20:55 Thomas: Yeah, it's a great, it said little upsell. It's so perfect because it's like not relative to the major expense. You're like, well, this is nothing relative to that. And don'T want to take the risk that like, I'm totally screwing that over for, a you small amount of money. It's fiendishly good as a sales bitch.

0:20:58 Andrew: Yeah right It's really smart, yeah, so, um, against the argument that I just articulated to you, here is what and gadget reported in, and their interview with Noel Lee was sort of their response. So the first was a bandwidth argument, right, and that is, I think, sort of what you just said, right. So the requirements of what was then cutting-edge 1080p and beyond is what separates high-end cable from the knockoffs. The newest spec, 1.3a, means just over 10 gigabytes of bandwidth. Standard 480p requires less than one gigabyte, the current 8-bit 1080p requires 4.46 gigabytes, but the next generation will require nearly 15 gigabytes, it could be gigabits I don't know, yeah.

0:21:45 Thomas: Is it gigabit, by the way? I think when you're talking about that kind of thing, it's usually bit, but I'm not looking at it. But

0:21:52 Andrew: Could be more than the highest certified HDMI cable can support, so okay, so uh, yeah, it can, if you're not pushing through, if you require certain amount of bandwidth, there, there could be a difference on the cables on that. There are a bunch of things that relate, that I think are true, but probably trivial, and that is relating to build quality?

0:22:12 Thomas: Sure.

0:22:12 Andrew: So yeah, absolutely build quality. Even if it has an HDMI style connector, it may not be certified HDMI, and the Monster cables were certified HDMI. Am video, I differences in the cable could be easily spotted by your untrained eyes, put pin it, put in that, and and then this argument, which uh, again, in Gadgets, is this probably made the most sense of all, future-proofing and heavy duty cable are crucial for in-wall installation.

0:22:20 Thomas: Yeah, that's für sure.

0:22:36 Thomas: Oh, since you can't undo it or redo it easily or upgrade it easily, you want to future-proof it, install the best possible. And that's a real thing. You know, when you're installing network cable, you're like, well, do I go with, you know cat five or cat freaking 10 or whatever we're on now, even though, even though your current internet connection might not even be able to use that much bandwidth now.

0:22:37 Andrew: Yeah. Yep. Right. Right. But but yeah, you don't want to have have to go rip the cable out of the wall, right? That's good, so so productive argument. Now we've been talking about the kind of buy a three thousand dollar TV, buy a hundred dollar cable with it. Um, I need to tell you, I'm going to list this as a consumer, an archived Consumerist article which describes the 80, up to 80 markup on the retail end after huge wholesale prices. So, so I'm going to read the four most expensive Monster cables in 2008, The Monster MP AVS-2000, retail price $1,500, wholesale

0:22:58 Thomas: Right. Exactly. Oh God. This is great.

0:23:35 Thomas: God.

0:23:36 Andrew: Price $909.12. HTS 7000 retail price $1299.99, wholesale price $787.90. The HDS 5100 retail price, $699.99, wholesale price $453.50. And finally, the HTS 3600, a bargain at $499.99, also price $355.27.

0:23:37 Thomas: Oh.

0:23:58 Thomas: Let's go with that one, that's so cheap. Oh,

0:24:02 Andrew: I will include that link in the show notes. It's it's February of 2008, a fifteen hundred dollar HDMI cable. That's those are all HDMI cables. Yeah.

0:24:02 Thomas: My god. Oh, those are all just HDMI right? That's

0:24:12 Andrew: So now let's go back to that Pepsi challenge that I talked about, and I am going to include a 2007 and a 2009 Engadget article, article, uh, this is their word, not mine, uh, on the HDMI cable scam used to fool in-store customers, including photographs that I have linked in the show notes.

0:24:14 Thomas: So bad. It's Okay. You can say boomers, it's fine. Yeah.

0:24:34 Andrew: Yeah. Yeah, so uh, what they would do is at various retail electronic stores, they would, you know, how you know you have the wall of TVs, and they would have two identical TVs hooked up to an identical source, uh, and it would say, can you see the Monster difference, and one would be hooked up via Monster cable, and one will be hookedup via, you know, the standard old crappy cable, except that, and I'm going to read from Engadget, is 2009, this is still going on, right? Man, this is just sad. Over a year after after the Internet was set ablaze with rage after seeing Monster's HDMI cable scam, we've been notified that the tactic is still being used in at least one Fry's Electronics store.

0:24:48 Thomas: Oh, my God. Our

0:25:17 Andrew: This tells you the age because Fry's is no longer in business.

0:25:17 Thomas: Oh, that's so sad.

0:25:21 Andrew: For those unaware, the rig works as such. Two TVs are set beside each other alongside a sign that says, See the Monster HDMI Difference. The trouble is the Monster set on the right is connected to its source via an HDMI cable, while the non-Monster set onthe left is connected via composite cable.

0:25:36 Thomas: Coat hangers.

0:25:37 Andrew: As in, the lamest looking signal next to using an RF modulator. So is anyone with any amount of power looking at this? We get the feeling "false advertising" is a real understatement of the situation. That was 2009. And and again, I can tell you, uh, solely from Wikipedia that in that its early 2000s heyday, Monster is now just Monster Inc. has gone from having over 800 employees to having less than 10 full-time employees. This So is not great for the Monster business, right? The transition away from, you know, who the hell knows, right, whatever, to HDMI. And also, by the way, like we've set up a scam, an obvious scam.

0:25:38 Thomas: Yeah.

0:26:20 Thomas: Yeah. An actual scam.

0:26:22 Andrew: Right. And again, is it possible that that was coordinated at the company level, or is it impossible it was just what enterprising Monster salespeople, having been incentivized with bonuses, you know, came up with and copied from it? Who knows, right? I'm not saying that this was a corporate innovation. I'm saying that this was documented with photos in our show notes and very clearly contributed to the downfall of Monster as a company. So, looked for alternative sources of revenue. One of the things that we don't have time for in this story, it's a super interesting legal dispute on its own, they they, they did go into cryptocurrency.

0:26:56 Thomas: They went into cryptocurrency. No! I was making that up! You gotta be kidding me!

0:27:03 Andrew: They went into, they went into crypto in uh, 2018, and I'm not going to cover that. Um, they, they also, as far as I can tell, developed the, the Beats by Dre, right? They partnered with Dr. Dre, they developed Beats, and then Dr. Dre took it and sold it to Apple and cut Monster out entirely. And so that's a super interesting case, and it looks like they got screwed, right? So, uh, we could talk about that, I'm not going to, just, beyondthe beyond scope of this episode. One of the right ways that they appeared to, uh, perhaps enhance their revenue stream was through trademark and patent trolling. And again, I'm going to to go back to reading solely from Wikipedia here, because, very litigious company, although, you know, who knows, they've only got 10 employees now. Uh, but, but if you're listening, uh, know we've, we've done our, uh, journalistic due diligence with respect here, Wikopedia. So, notes, as of 2004, Monster owned about 300 trademarks, 70 of which are related to the word "monster," Monster.

0:27:05 Thomas: Oh. Oh, jeez. Ah, there you go.

0:28:03 Andrew: Critics and defendants say that Monster is too aggressive in pursuing trademark protections against companies that do not have confusingly similar products and is trying to own a common word, not protect a brand. Monster representatives say they're doing what most premium brands do to protect their marks, and that their products include things like clothes, mints, and music. Now, I'm going to describe some of these trademark lawsuits to you before we go deep into their patent, alleged patent trolling, which is a different entity.

0:28:29 Thomas: They're suing Ronan Farrow for like, hey, every time you do a Me Too and you call one of these guys a monster, that's an infringement on our copyright. Sorry.

0:28:36 Andrew: So, you're not off by much. In the 2000s, Monster had legal disputes over its trademarks with the Discovery Channel for its show Monster Garage. Garage. Monster also had trademark disputes with Bally Gaming International over its slot machines, Monster Slots, with Hansen Beverage Company for its Monster Energy drink, and, this is my favorite, the Chicago Bears, who use the nickname Monsters of the Midway. Other trademark disputes include a 2001 lawsuit against the Walt Disney Company for products related to the film Monsters, Inc.

0:29:11 Thomas: I was going to make a Monsters, Inc. joke.

0:29:13 Andrew: Thought you might. That's why I had to get it out. I claim against an online used clothing retailer, Monster Vintage LLC. In 2004, Monster filed a complaint about the trademark application from Snow Monsters, a video website with skiing content for kids. The Snow Monsters,

0:29:14 Thomas: Oh, geez.

0:29:28 Thomas: And finally, no one is allowed to do the Monster Mash anymore.

0:29:33 Andrew: I'm shocked they haven't, tried to sue the Monster Mesh. The Snow Monster's owner initiated a lawsuit against Monster preemptively. Uh, it also had a Monster, also had a trademark dispute with the job site Monster.com. In 2006, Monster brought a suit against Monster Mini Golf, a company selling franchise mini golf locations throughout the United States. After an unsuccessful legal mediation, Monster Mini Golf launched a grassroots campaign against Monster Cable on the internet.

As a result, Monster received more than 200 complaints from the public, dropped the lawsuit, and agreed to pay up to two hundred thousand dollars of Monster Mini Golf's legal fees. In 2009, Monster Cable CEO Noel Lee said on Fox Business that the company, quote, "has had to balance their trademark protection efforts with the public's point of view," end of quote. So, all right, we've talked about trademark trolling before. Again, let me me give defensible side of the equation. One, right? Of the things that is significant in demonstrating the commercial use of your trademark is that you demonstrate affirmative efforts to defend your trademark against other potentially infringing uses, and right?

So when you receive a cease and desist from a trademark owner, right, That will be what they will say, which is oftentimes, you know, it will even be phrased, kind of generously, look, right? Like, we hate to do this, but the law requires us to vigorously defend our trademarks, and we're vigorously defending our trademark. And I would say an opinion on this, for example, this is where I think that not to suggest that all legal actions brought by the Disney company are are defensible or meritorious or that the mouse is not evil. But But right.

I will say, right, like a lot of people who say, look, all I'm doing is selling knockoff Mickey Mouse clothing on my Etsy store and I make eight hundred dollars a year off of that. Why did Walt Disney send me a cease and desist letter and, know, you stop me from, you know, selling, you know, Mickey Mouse in the Calvin peeing pose, you know, to go on the back sticker of your truck or whatever, and and right?

0:30:48 Thomas: First, they came for the Monster Smash and I said nothing.

0:31:43 Andrew: Those stories tend to get a lot of, you know, billion-dollar company suing the little guy, but actually Disney is 100% in the right on that one, if they noticed that you are are selling an exact duplicate, uh, of Mickey Mouse, or as near as sort of makes no difference, hand drawn, uh, it's obviously Mickey house uh in a different form, uh, and then they do nothing about it, then that they could be ruled to lose that trademark.

0:32:07 Thomas: Interesting.

0:32:07 Andrew: Right, there they're no longer actively defending it. And and my analogy, uh, you've all seen the like Calvin peeing you little sticker that goes in the back of usually pickup trucks and Yeah, the reason for that was because Bill Watterson, the creator of Calvin and Hobbes, did not want to merchandise Calvin and Hobbes in any way. And so, uh, those are not official, those are just knockoffs, and that they took no action. And so as a result, it is impossible to get a trademark and stop them them from using it or otherwise claim that, uh, you are tarnished. Like, obviously, the last time Bill Watterson was interviewed, he was like, no, it's sort of the exact opposite of anything I have ever wanted to be associated with. Calvin and Hobbes is like Calvin peeing on the Ford logo or whatever.

0:32:16 Thomas: Yeah. Wow. Wow.

0:32:52 Thomas: Sometimes you got to engage in some capitalism even to, you prevent worse outcomes. Is this a reason, Andrew, why maybe you shouldn't make your own merch of, let's say, a podcast you really enjoy, even as well-intentioned as it is? Because then it might put those people in the rough position of like, well, we love our listeners, and the fact that they're making their own stuff with our stuff is, you we like that they like us, but it kind of puts us in the awkward position of needing to go after someone like that, because otherwise we're not defending our IP, right?

0:32:56 Andrew: Yeah.

0:33:25 Andrew: That That that is 100% correct. And hopefully it gives you sort of cause to rethink, you the stories that circulate, particularly like I know the last time we talked about, uh, copyright, we're gonna get some, uh, comments on this too, which, you know, should be great, right? Like, I want to encourage that that diversity of conversation. Um, we had a lot of folks who identified as, um, and sort of came on to the Facebook groups or posted on patreon.com, which we always check first, that said, yeah, I I write fan fiction, or you know, I participate in these other sort of, you know, para activities that, that are sort of around the scope of copyright. And so if you're in those circles, right, really, really easy to sort of drum up outrage of, how dare billion dollar company, you try and stomp on, you this particular segment.

0:33:52 Thomas: Right.

0:34:11 Andrew: And the answer is that like, it can be really, really challenging to, you know, figure out, uh, where, um, that Line is, yeah.

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0:36:10 Andrew: Okay, uh, I want to pivot to the last part of the story, because this is the best part of the story. If the purpose of trademark trolling is to—we talked about their legitimate trademark cease and desist request, but largely the purpose of trademark trolling is to extract—extract. Yeah, get a settlement.

0:36:24 Thomas: Right, get a check. Get it for nothing. Yeah.

0:36:32 Andrew: Right. What about allegations that you've infringed upon a particular patent? And let's talk about this in the context of Monster's patents. So again, going back to Wikipedia, by 2009, Monster had made 190 filings with the U.S. Patent and Trademark Office. Most filings were to delay potentially infringing trademark applications so Monster could study them. Some were formal oppositions, and about 30 resulted in lawsuits. Most lawsuits were settled with non-disclosed terms. So when you write a cease and desist letter in connection with a patent, you're saying something different. You're saying the design of your product infringes upon a design that we own, and this brings us to Blue Jeans Cable. Blue Jeans Cable, by the way, still in business, still has the website bluejeanscable.com and if you click on their legal, you get this kind of like delightful Geocities page, and these 2008 letters are still up.

So on March 28, 2008, Monster sent to Blue Jeans Cable a cease and desist letter that says, their law firm, which probably the law firm and even the lawyer, you know, no longer practicing anymore, this firm represents Monster in its intellectual property enforcement matters. We have discovered that Tartan Cable, Blue Jeans Cable wholly owned or alter ego, is offering for sale a number of cable connectors in violation of Monster's intellectual property rights.

It appears that the design of the connector portion of your cable, component video, composite video, stereo audio cable, and coaxial digital audio cable infringes a variety of our client's design patents.

0:38:16 Andrew: Accordingly, we must demand that your client immediately cease and desist offering, selling, offering for sale, advertising, distributing, making, using, and or importing any such products, including the Tartan Cable line of products that violate any intellectual property right of our clients. And we insist that your client recall any such products immediately and provide an accounting of all units sold, including all profits made from those sales. We request your response within 14 days of receipt of this letter. Well, that would probably scare most folks. It came with a set of exhibits and I have to tell you, in fact, I'm going to send just the exhibits to you so you can scroll through because I want you to see the images.

0:38:53 Thomas: Are they of Hunter Biden's penis? Because I'm going to be very upset. I mean, I do have, I know my rights.

0:38:56 Andrew: I mean, the first one the first one could be all, so if you look at, you know, exhibit A, it's looks like a a connector to me, right, and then when you go to the rest of them, the B and on to the N, C, D, they all just look like the component connector interface to me. Right it's the kind of barrel and then there's a thin tube in the middle because That's how you plug it into the outlet. So, you know, okay, they have these patents, but even the fact that you have a design patent doesn't prove that you can enforce that in an infringement action if it's essential to how that product must be constructed, right, yeah.

0:38:59 Thomas: Yeah. Yeah, yeah, pretty much. Yeah right.

0:39:33 Thomas: Oh I didn't know that. Oh right, right, right.

0:39:42 Andrew: So now sort of put that all together, super threatening letter, um, really generic-looking, set of like, look everything you've ever done, and the letter, by the way, demands you, all of your cable are belong to us, that's right. Well, as it turns out, um, the CEO of Blue Jeans Cable, Kurt Denke, uh, happened to be a retired lawyer, and so he wrote back perhaps the greatest response letter in the history of intellectual property rights, and I'll link this one in the show notes, we're to quote liberally from it, uh, the ray line is, "your letter, comma, received April Fool's Day," so theirs was dated March 28th, they got it April 1, this letter is sent back April 14. Remember, they had 14 days to respond, right? So, uh, "Dear Lawyer, let me begin by stating without equivocation that I have no interest whatsoever in infringing upon any intellectual property belonging to Monster Cable. Indeed, the less my customers think my products resemble Monster's in former function, the better. I am evaluating your"

0:39:52 Thomas: All of your cable are belong to us. Yes.

0:40:43 Thomas: Okay.

0:40:43 Andrew: Claim that the connectors on certain Tartan brands infringe Monster's design patents and trademarks. However, the information you supplied with your letter is plainly inadequate to support a claim of infringement, so I'm writing to you to ask for further information and clarification regarding your claims. I will begin by addressing your trademark slash trade dress claim. You have referred to two trademark registrations and have attached some printouts from the U.S. Patent and Trademark Office system, but the depiction of the marks on the drawings is small and indistinct, making it difficult to determine exactly what the alleged resemblance is, and so I need further information from you. I'm going to need legible scale drawings of the marks with dimensions shown on the drawing, to the extent that the drawings are inadequate to show the nature of materials, finishes, print, legends, colors, and the like. I will also need examples of each of Monster Cable's actual uses of these marks in commerce.

Actual physical examples would be best, but photographic reproductions might do, as you will understand, these considerations are essential to any claim arising out of trade dress, that is, the packaging, as you are alleging in essence that there's a resemblance sufficient to cause confusion over the identity or origin of the goods, and no mere line drawing can suffice. Second, I will need copies of the trademark applications and any correspondence between you and the U.S. patented Trademark Office in support of those applications.

Third, you have not identified the Monster Cable products in question in actual use and distribution and commerce whose trade dress you allege has been appropriated. I have reviewed your online materials and examined connectors, and I'm unable to determine which, if any, of these are thought to represent use of these particular marks. I am also unable to determine from this review whether Monster actually offers any product to sale for sale to which the

0:42:17 Andrew: Tartan connectors are alleged to be particularly similar. My own sense of it, and looking at the connectors, is that there's been no similarity between our connectors and any of the Monster Cable connectors beyond the general functional and conventional characteristics, characteristics which all or nearly all solder cup mechanical assembly barrel style RCA type connectors share. It may be that there is some line of products to which you have intended to refer but I have not found in your marketing materials or displays, but if so, you'll need to show me specifically what product it is, and you'll need to call my attention to the specific aspects of the connector design which you contend constitute unique Monster Cable trade dress, what the associated secondary meaning of those aspects of the trade dress is, and in what manner and by what characteristics you allege that this trade dress has been appropriated. Okay, fourth, the dimensional characteristics of the connector as used in commerce vary from the dimensions of the scale drawing of your mark.

0:43:08 Andrew: So, I will need a proper scale drawing with dimensions of each version of the actual connector as use in commerce, as well as photographs of the connectors showing the actual in-use finishes. If there's more than one such connector design in actual use by Monster Cable as to which appropriation of trade dress is alleged, of course, I will require this information for each and every design. On the basis of what I've seen, both in the documents you've sent and in the actual appearance of the connectors I've used in commerce, it does not appear to me that you're in a position to advance a non-frivolous claim for infringement of these marks. There's not sufficient resemblance between our connectors and any mark or example of the mark's actual use that I can find to support a claim, but if you have further information, you're welcome to submit it. You've also supplied me with partial documentation on five design patents which you claim these connectors infringe. I will begin by observing, and again, me, I thought it was clearly one design on A and then four designs with a little prong in the middle.

0:44:01 Andrew: But here's what Kurt says. I will begin by observing, first, that the five design patents are so very much unlike one another that it's hard to imagine any product could actually infringe more than one of them at a time. Anything close enough for one of them to be deemed an infringement would, by that fact alone, be too dissimilar from the other four.

And I would say, again, to me the last four kind of looked all the same, and the first one looked very clearly different, but the dissimilarity of Tartan connector from each of them is readily evident. Um, and then we go on, the fact that you've presented me with five distinctly different design patents, I have to say, gives me pause.

I would go over them in detail, the differences, but, you know, if you're taking the position appears you're taken, there might be a little point in discussing it with you. And then they go through some of that analysis, I'm going going to skip. I will point out, though, you are no doubt already well aware that the gross morphology of the RCA plug is pretty well dictated by function. RCA plugs intended for soldering and assembly have certain attributes in common. Their diameters constrained by the need for the shell to fit over an internal set of solder points and cable clamp, and their length by the need to provide some room for cable and prep and and attachment.

They're generally radially symmetrical along the interior posterior axis, owing to the need to accommodate both a round profile cable and the round profile RCA socket. The socket, the connector end, is constrained by the standard dimensions of the RCA circuit and by the need, as the socket provides for no bayonet or screw attachment, to provide sufficient tension on insertion to maintain good mechanical and electrical contact. So it continues, here it is, my assumption, since you cite design patents

0:45:32 Andrew: Only and not utility patents, that Monster Cable makes no claim here for any functional aspect of any of these designs, right? So that's the the crucial bit of the analysis here. If it is related to the function, you can't protect that with a design patent, that makes total sense, right? If I'm wrong, please let me know what utility patents Monster holds and what claims, if any, Monster asserts on the basis of those utility patents. So let's think about this, like, think about this in terms of your cell phone rechargers, right? You could certainly have a functional patent on the USB to the outlet, right? But you could also have a design patent on, you know, little, the way the box looks, right, the way the cable looks, um, but but you can't claim any protection for your design, right?

0:46:22 Andrew: If I have the Transformers logo, right, and out of the middle of the Autobot is the USB socket for the cable, right? So plug the Autobot's logo into the wall, it glows red or blue. You plug in a little cable into it, and then you plug it into charger phone, phone, anybody using the Autobot logo as a phone charger would owe Hasbro, or whoever has that design patent, money.

But I wouldn't be able to claim that, like, the fact that you had a USB connector in the middle of your recharger is covered by my Autobot design patent, right? Because that's utility, not a design. So through the, so there's a lot of argument that, uh, I'm going to skip over, that is just requests for more information, sort of going through some of the specifics, and and I will say that, you know, this is one of the things lawyers do in these sorts of cases where you suspect trolling is, you put in tons of requests. You're like, okay, you've you've made X claim, like, here's the information I will need to evaluate your claim, right? And that tells somebody who is engaged in a phishing expedition, or, uh you know, scamming expedition, like, well, you want to move on to someone else. Here at this point, you know, like, this is, you, you did not get, you know, uh, somebody who was terrified because there's a a lawyer's name attached to

0:47:45 Thomas: Yeah.

0:47:45 Andrew: It. There's a lot of that. Then going to go into the end of the letter, which is, again, this is over six pages long, or exactly six pages long, and I think just so utterly delightful. But after all of that, it says, once I've received the above materials and explanations from you, I will undertake to analyze this information and let you know whether we are willing to accede to any of the demands made in your letter. If my analysis shows that there's any reasonable likelihood that we've infringed in any way on any of Monster Cable's intellectual property rights, we will of course take any and all action necessary to resolve the situation. If I do not hear from you in the next 14 days, or if I do hear from me but not receive all of the information requested above, I will assume that you have abandoned these claims and closed your file.

0:48:31 Andrew: As for your request for information or for action directed to me, I would remind you that it is you and not I who are making claims, and it is you, not I, who must substantiate those claims. You have not done so. I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and I'm generally familiar with what seems to me to be Monster Cables modus operandi in these matters. I therefore think it's important before closing that I make you aware of a few points. So then he says, I graduated from Penn Law School in 85, spent 19 years in litigation practice with a focus on federal litigation. Describing that, I say this because my observation has been that Monster Cable typically operates in a hit and run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy. And what follows is a quickie negotiation session that ends with payment and a licensing agreement.

0:49:20 Andrew: Your Client then uses this collection of licensing agreements to convince others under similar threat to accede to its demand. And again, I want to point out, I'm reading directly from the letter here, right? Let me be clear about this. There are only two ways for you to get anything out of me. You will either need to one, convince me that I have infringed or two, obtain a final judgment to that effect from a court of competent jurisdiction.

If you sue me, the case will go to judgment and I will hold the court's attention upon the merits of your claims or to speak more precisely, the absence of merit from your claims from start to finish. Not only am I unintimidated by litigation, I sometimes rather miss it. And then The last paragraph, to me, this is the very, very best. Choose to undertake litigation, your upside, in quotes, is tremendously limited. If you somehow managed, despite the formidable obstacles in your way, to obtain a finding of infringement, and if you were successful at recovering a large licensing fee, say 10 cents per connector, the measure of damages, your recovery to date would not reach four figures. On the down side, I will advance defenses which, if successful, will substantially undermine your future efforts to use these patents and marks to threaten others with these types of actions. As you are, of course, aware, it is easier today for your competitors to use collateral estoppel, right, and we talked about that in the last episode, that is preclusion,

0:49:58 Thomas: That's Good. Good.

0:50:45 Andrew: Offensively than it ever has been before, as there is little doubt that making baseless claims of trade dress infringement and design patent infringement is an improper business tactic which can give rise to unfair competition claims and, for a company of Monster size, potential antitrust violations with treble damages and attorney's fees. I look forward to receiving the information requested promptly. Sincerely, Kurt Denke. So I love all of that. Is hilarious. It, but that last part is, I think, really, really good illustration of what makes a good response to a cease and desist letter. And again, I added, you know, this is all subject to, I am a lawyer, but not your lawyer, don't take legal advice from a podcast. Um, that comparison of sort of the bottom line, right, even if you were to win in litigation, here's what you would win, and by the way, here's what it might cost you to try and go after that, is a key element in all of these, you know, sort of response letters. Like, you're chasing after me because I'm a little guy, even if you won, you would get hundreds of dollars in damages, and

0:51:06 Thomas: Thought

0:51:54 Andrew: By the way, you would be risking an adverse finding by a court that says your, your design patterns are not similar to this design patent, which, which is going to make it harder for you to make that claim against other suckers like me. So maybe this is a risk you don't want to take. And I have to tell you, uh, in all of my research, and I did a substantial amount of looking, um, there appears to have been no response to this letter from April of 20, of 2008. Uh, so I infer, I, I will take, uh, Kurt's, uh, advisement that, uh, since, since no response was forthcoming, that that they closed that File. So there we go.

0:52:32 Thomas: Better of it. Yeah, that's Right, Andrew, that was ton of fun. That was the best legal document I've read since the Onion brief.

0:52:43 Thomas: Thanks for the Tuesday deep dive. And we will see everybody in a couple of days for possibly the Liz dive.

0:52:50 Andrew: Whoo.

0:52:51 Thomas: Liz dive will come up. We'll figure it out. We'll workshop it. All right, everybody. See you then.

0:52:56 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:53:30 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/YodelMountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.