The European Court of Justice has ruled against Red Bull in its fight to invalidate the trade mark “FLÜGEL” ( meaning ‘wings) owned by Austrian drinks company Asolo.
Asolo have had their mark since the late 1990’s in class 32 for drinks and fruit juice and in class 33 for alcoholic drinks (except beer). However in 2011 Red Bull decided to seek invalidity of the Asolo mark on the basis of two earlier Austrian trade marks “VERLEIHT FLÜGEL” (which translates to “gives you wings”); “RED BULL VERLEIHT FLÜÜÜGEL” (which translates to “Red Bull gives you wings”) both registered in class 32 for energy drinks. The Court, annulling decision of the European Intellectual Property Office, found that energy drinks and alcoholic beverages cannot be considered similar goods for the purposes of establishing likelihood of confusion.
The EUIPO had decided differently on the basis that it is common practice to mix and consume Red Bull with alcohol and accordingly there is a link between the two products in the consumer’s mind. This they decided would mean that Asolo derived unfair advantage from the use of its mark.
Asolo’s appeal against this decision to the Board of Appeal within the EUIPO was also dismissed, the Board finding that Asolo’s trade mark cover for non-alcoholic drinks and energy drinks were in competition with each other and were to be considered identical.
The European Court has decided to treat the consumer with more intelligence and the decision is a welcome departure from earlier cases where ‘drinks’ with high reputation have been given broad protection for their marks. Asolo’s argument was that Red Bull prints on its cans the expression “do not mix with alcohol“, which in itself is enough to distinguish between the two brands was used to convince the court that a consumer who wished to remain alert should not and would not substitute a non-alcoholic energy drink. Merely because energy drinks and alcohol drinks are frequently mixed does not mean that the public are not alive to the very different types of drinks and the Austrian Public are well aware of the distinction between the two.
A good result for Asolo against a company that is fast becoming a trade mark bully. Has anyone yet considered whether it is OK for Red Bull to go around saying their product ‘gives you wings’. Is that not errrr a trade description offence.
Written by Margaret Briffa