IP Review Winter 2019/20

6 Trade Marks Background Developed by Austrian businessman Dietrich Mateschitz and Thai businessman Chaleo Yoovidhya, the Red Bull energy drink was launched in 1987 and has since achieved significant global success. The blue and silver colour combination which features on their energy drink packaging has become synonymous with the Red Bull brand and strives to distinguish Red Bull’s products from its competitors. As a result, this colour combination has become extremely valuable to Red Bull and is something the business has long sought to protect. In 2002, Red Bull applied to the European Intellectual Property Office (EUIPO) for protection of a trade mark (see image 1) in respect of ‘energy drinks’ in Class 32 (EUTM No. 2534774). The application claimed protection for the colours blue (RAL 5002 according to the RAL Classic Colour System) and silver (RAL 9006) with the ratio of the colours being approximately 50:50. A further application was made by Red Bull in 2010, again for the mark (image 1) in respect of ‘energy drinks’ in Class 32 (EUTM No. 9417668). This application claimed protection of colours blue (Pantone 2747C according to the Pantone Colour System) and silver (Pantone 877C) with the two colours being applied in equal proportion and juxtaposed to each other. These marks were registered by the EUIPO on 25 July 2005 and 8 March 2011 respectively. Invalidation action In 2013, a Polish company, Optimum Mark, objected to the registration of Red Bull’s EUTM registrations on the grounds that the mark (image 1) was not sufficiently precise and did not qualify as a sign ‘capable of being represented graphically’ or ‘distinguishing the goods or services of one undertaking from those of other undertakings’ according to Articles 4 and 7(1)(a) of the EU Trade Mark Regulations. Optimum objected to EUTM No. 2534774 on the grounds that the approximate 50:50 ratio of colours allowed for numerous different combinations ‘with the result that consumers would not be able to repeat IP review winter 2019/20 Red Bull’s wings clipped as CJEU rejects colour trade marks In 2017, the General Court of the EU declared two EU trade mark colour registrations owned by Red Bull to be invalid. Red Bull appealed this decision but earlier this year the Court of Justice of the EU (CJEU) rejected Red Bull’s appeal and maintained the invalidity of the colour marks in a decision which has important implications for brand owners in the UK and EU. Image 1: the Red Bull mark